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VOLUME 6B • TITLE 9 



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Arkansas Code 

OF 1987 

Annotated 




VOLUME 6B 

2009 Replacement 
TITLE 9: FAMILY LAW 

Prepared by the Editorial Staff of the Publisher 

Under the Direction and Supervision of the 

ARKANSAS CODE REVISION COMMISSION 

Senator Sue Madison, Chair 

Senator David Johnson 

Representative John Edwards 

Representative Darrin Williams 

Honorable Douglas O. Smith, Jr. 

Honorable Don Schnipper 

Honorable David R. Matthews 

Honorable Cynthia Nance, Dean, University of Arkansas at 

Fayetteville, School of Law 

Honorable John DiPippa, Dean, University of Arkansas at 

Little Rock, School of Law 

Honorable Warren T. Readnour, Senior Assistant Attorney General 

Honorable Marty Garrity, Assistant Director, 

Bureau of Legislative Research 

LexisNexis @ 



Copyright © 1987, 1991, 1993, 1998, 2002, 2008, 2009 

BY 

The State of Arkansas 



All Rights Reserved 

LexisNexis and the Knowledge Burst logo are registered trademarks, and Michie is a trademark 
of Reed Elsevier Properties Inc. used under license. Matthew Bender is a registered trademark of 
Matthew Bender Properties Inc. 



4063715 



ISBN 978-1-4224-6343-7 



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(Pub.40604) 



Sources 

This volume contains legislation enacted by the Arkansas General 
Assembly through the 2009 Regular Session. Annotations are to the 
following sources: 

Arkansas Supreme Court and Arkansas Court of Appeals Opinions 
through 2009 Ark. LEXIS 489 (October 5, 2009) and 2009 Ark. App. 
LEXIS 614 (July 1, 2009). 

Federal Supplement through September 1, 2009. 

Federal Reporter 3d Series through September 1, 2009. 

United States Supreme Court Reports through September 1, 2009. 

Bankruptcy Reporter through September 1, 2009. 

Arkansas Law Notes through the 2008 Edition. 

Arkansas Law Review through Volume 61, p. 787. 

University of Arkansas at Little Rock Law Review through Volume 
30, p. 267. " 

ALR 6th through Volume 17, p. 757. 

ALR Fed. 2d through Volume 21, p. 361. 



in 



Titles of the Arkansas Code 



1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 
10. 
11. 
12. 



13. 

14. 
15. 



General Provisions 
Agriculture 
Alcoholic Beverages 
Business and Commercial Law 
Criminal Offenses 
Education 
Elections 

Environmental Law 
Family Law 
General Assembly 
Labor and Industrial Relations 
Law Enforcement, Emergency 
Management, and Military Af- 
fairs 

Libraries, Archives, and Cultural 
Resources 
Local Government 
Natural Resources and Economic 
Development 



16. Practice, Procedure, and Courts 

17. Professions, Occupations, and 
Businesses 

18. Property 

19. Public Finance 

20. Public Health and Welfare 

21. Public Officers and Employees 

22. Public Property 

23. Public Utilities and Regulated In- 
dustries 

24. Retirement and Pensions 

25. State Government 

26. Taxation 

27. Transportation 

28. Wills, Estates, and Fiduciary Re- 
lationships 



IV 



User's Guide 

Differences in language, subsection order, punctuation, and other 
variations in the statute text from legislative acts, supplement pam- 
phlets, and previous versions of the bound volume, are editorial 
changes made at the direction of the Arkansas Code Revision Commis- 
sion pursuant to the authority granted in § 1-2-303. 

Many of the Arkansas Code's research aids, as well as its organiza- 
tion and other features, are described in the User's Guide, which 
appears near the beginning of the bound Volume 1 of the Code. 



TITLE 9 
FAMILY LAW 



SUBTITLE 1. GENERAL PROVISIONS 

CHAPTER. 

1. GENERAL PROVISIONS. [RESERVED.] 

2. CHANGE OF NAME. 

3. DOMICILE. 

4. ARKANSAS DOMESTIC PEACE ACT. 

5. ARKANSAS CHILD SAFETY CENTER ACT. 
6-7. [RESERVED.] 

SUBTITLE 2. DOMESTIC RELATIONS 

CHAPTER. 

8. GENERAL PROVISIONS. 

9. ADOPTION. 

10. PATERNITY. 

11. MARRIAGE. 

12. DIVORCE AND ANNULMENT. 

13. CHILD CUSTODY AND VISITATION. 

14. SPOUSAL AND CHILD SUPPORT. 

15. DOMESTIC ABUSE ACT. 

16. FAMILY PRESERVATION SERVICES PROGRAM ACT. 

17. UNIFORM INTERSTATE FAMILY SUPPORT ACT. 

18. QUALIFIED DOMESTIC RELATIONS ORDERS. 

19. UNIFORM CHILD-CUSTODY JURISDICTION AND ENFORCEMENT ACT. 

20. ADULT MALTREATMENT CUSTODY ACT. 
21-24. [RESERVED.] 

SUBTITLE 3. MINORS 

CHAPTER 

25. GENERAL PROVISIONS. 

26. RIGHTS RESPECTING BUSINESS AND PROPERTY. 

27. JUVENILE COURTS AND PROCEEDINGS. 

28. PLACEMENT OR DETENTION. 

29. INTERSTATE COMPACTS. 

30. CHILD ABUSE AND NEGLECT PREVENTION ACT. 

31. YOUTH SERVICES. 

32. CHILD WELFARE. 

33. YOUTH VIOLENCE. 

34. VOLUNTARY PLACEMENT OF A CHILD. 

APPENDIX. 

CHILD SUPPORT GUIDELINES 

Publisher's Notes. The term "notice" port order" and "support order" are de- 
is denned for this title at § 9-14-201(8). fined for this title and the rest of the Code 
The term "income" is denned for this title at § 9-14-201(2). 
at § 9-14-201(4)(A). The terms "child sup- 



9-2-101 FAMILY LAW 

SUBTITLE 1. GENERAL PROVISIONS 

CHAPTER 1 
GENERAL PROVISIONS 

[Reserved] 

CHAPTER 2 
CHANGE OF NAME 



SECTION. 

9-2-101. Name change — Procedure. 
9-2-102. Name change — Use of new 
name. 



Cross References. Restoration of 
name on granting of divorce, § 9-12-318. 

Effective Dates. Acts 1851, p. 72, § 4: 
effective on passage. 

Acts 1985, No. 542, § 3: Mar. 25, 1985. 
Emergency clause provided: "It is hereby 
found and determined by the General As- 
sembly that some persons under supervi- 
sion of the Department of Correction, 
have their names changed to avoid proper 
documentation of activities and to elude 
proper supervision and detection by law 
enforcement; that this places a hardship 
on the Department and on law enforce- 
ment officers in the State; that this Act is 
designed to prevent name changes of per- 
sons under supervision of the Department 
of Correction and should be given effect 
immediately. Therefore, an emergency is 
hereby declared to exist and this Act being 
necessary for the preservation of the pub- 



lic peace, health and safety shall be in full 
force and effect from and after its passage 
and approval." 

Acts 1989, No. 52, § 5: Feb. 13, 1989. 
Emergency clause provided: "It is hereby 
found and determined by the General As- 
sembly that the circuit and chancery 
courts should have the power, upon good 
cause shown, to alter or change the name 
of any person, even persons in the custody 
of the Department of Correction; that this 
Act grants that power; and that this Act 
should be given effect immediately in or- 
der to grant the courts that power as soon 
as possible. Therefore, an emergency is 
hereby declared to exist and this Act being 
immediately necessary for the preserva- 
tion of the public peace, health and safety 
shall be in full force and effect from and 
after its passage and approval." 



RESEARCH REFERENCES 



A.L.R. Circumstances justifying grant 
or denial of petition to change adult's 
name. 79 A.L.R.3d 562. 

Rights and remedies of parents inter se 
with respect to the names of their chil- 
dren. 40 A.L.R.5th 697. 



Am. Jur. 57 Am. Jur. 2d, Names, 
et seq. 

C.J.S. 65 C.J.S., Names, §§ 21-28. 



16 



9-2-101. Name change — Procedure. 

(a) Upon the application of any person within the jurisdiction of the 



3 CHANGE OF NAME 9-2-102 

court, the circuit court shall have power, upon good reasons shown, to 
alter or change the name of the person. 

(b) When application is made to the court under this section, it shall 
be by petition in writing embodying the reasons for the application. 

(c)(1) When allowed, the petition shall by order of the court be spread 
upon the record, together with the decree of the court. 

(2) An appropriate order, as prescribed in this subsection, may be 
made by a circuit judge in vacation. This order shall have the same force 
and effect as if made at term time. 

History. Acts 1851, §§ 1, 2, p. 72; C. & 1985, No. 542, § 1; A.S.A. 1947, §§ 34- 
M. Dig., §§7756, 7757; Pope's Dig., 801, 34-802; Acts 1989, No. 52, § 1. 
§§ 10123, 10124; Acts 1943, No. 15, § 1; 

RESEARCH REFERENCES 

U. Ark. Little Rock L. Rev. Zakrze- dard of Review and Establishes Six-Factor 

wski, Family Law — Petitions to Change Test. Huffman v Fisher, 337 Ark. 58, 987 

a Minor's Surname: Arkansas Supreme S.W.2d 269 (1999), 22 U. Ark. Little Rock 

Court Adopts "Clearly Erroneous" Stan- L. Rev. 613. 

CASE NOTES 

Analysis name of second husband despite petition 

by first husband objecting to change. Clin- 
In General. ton v. Morrow, 220 Ark. 377, 247 S.W.2d 

Contest. 1015 (1952). 

Notice. A natural father has standing to chal- 



In General. 



lenge a proposed change of name of his 

, . a. minor child. Carroll v. Johnson, 263 Ark. 

lnis section is merely in affirmation OOA cn - C t UO , 1AMn „ v 

A . • i r i i - i. 4.1. 280, 565 S.W.2d 10 (1978). 

and in aid of, and supplementary to, the n ' . . , , . c c 

common-law rule that one may ordinarily Restraining order to prevent wife from 

change his name at will, without any legal changing child s name held warranted, 

proceedings, merely by adopting another Norton v - Norton, 268 Ark. 791, 595 

name, that the right is not limited by the S.W.2d 709 (Ct. App. 1980). 

ordinary rules of minority and that the Notice 

section only affords another method of ^^ t;tion for the name ch of 

doing so. Carroll v. Johnson, 263 Ark. 280, . ,.,j , , , 

565 S.W.2d 10 (1978); Stamps v. Rawlins m ' nor chll ^ en ls m f\^ ° ne parent t > 

297 Ark. 370, 761 S.W.2d 933 (1988). notice must be given to the other parent, 

for to fail to do so is a violation of the due 
Contest. process clauses of both the state and fed- 
Chancery court did not err in allowing eral constitutions. Carroll v. Johnson, 263 
mother to change names of children to Ark. 280, 565 S.W.2d 10 (1978). 

9-2-102. Name change — Use of new name. 

Any person whose name may be so changed by judgment or decree of 
any of the circuit courts shall afterward be known and designated, sue 
and be sued, plead and be impleaded, by the name thus conferred, 
except that records of persons under the jurisdiction and supervision of 
the Department of Correction shall continue to reflect the name as 
committed to the department's jurisdiction and supervision by the 
various circuit courts of the State of Arkansas. 



9-2-102 



FAMILY LAW 



History. Acts 1851, § 3, p. 72; C. & M. 
Dig., § 7758; Pope's Dig., § 10125; A.S.A. 
1947, § 34-803; Acts 1989, No. 52, § 2. 



CHAPTER 3 
DOMICILE 



SECTION. 




SECTION. 


9-3-101. 


Chapter supplemental. 


9-3-113. 


9-3-102. 


Voting privileges unaffected. 


9-3-114. 


9-3-103. 


Jurisdiction of courts. 




9-3-104. 


Administration by Secretary of 

State. 
Rules and regulations. 


9-3-115. 


9-3-105. 




9-3-106. 


Qualifications to become domi- 
ciled. 


9-3-116. 


9-3-107. 


Sex or marital status not a bar. 




9-3-108. 


Effect of marriage to resident. 


9-3-117. 


9-3-109. 


Status of women who lost domi- 
cile by marriage. 


9-3-118. 


9-3-110. 


Declaration of intent — Publica- 
tion of notice — Excep- 
tions. 


9-3-119. 


9-3-111. 


Petition for domicile. 


9-3-120 


9-3-112. 


Public notice of petition and final 
hearing. 





Declarations of applicant. 

Hearings upon petitions — Final 
orders. 

Admission within thirty days of 
general election prohib- 
ited. 

Admission of surviving spouse 
and minor children. 

Duties of clerks of court. 

Clerk's fees — Deposits for wit- 
ness expenses. 

Cancellation of certificate — Re- 
nunciation of residence 
and domicile. 

Certified copies of papers, etc., 
as evidence. 



Effective Dates. Acts 1941, No. 355, 
§ 21: Mar. 26, 1941. Emergency clause 
provided: "Whereas, the United States Su- 
preme Court has held that the determina- 
tion of domicile is a matter of fact, since no 
state has a statute definitely defining do- 
micile, and 

"Whereas, the state of Arkansas should 
have a statute defining domicile because 
people of wealth are refusing to move into 



the state without being assured that their 
domicile would be determined to be in the 
state of Arkansas, and 

"Therefore, an emergency is hereby de- 
clared to exist, and this act, being neces- 
sary for the immediate preservation of the 
public peace, health and safety, shall take 
effect and be in full force from and after its 
passage and approval." 



RESEARCH REFERENCES 

Am. Jur. 25 Am. Jur. 2d, Domicile, § 1 of wife living apart from husband. 82 
et seq. A.L.R.3d 1274. 

A.L.R. Domicile for state tax purposes C.J.S. 28 C.J.S., Domicile, § 1 et seq. 

CASE NOTES 



Analysis 



Applicability. 
County Residence. 

Applicability. 



for divorce was a resident domiciled in 
this state when the chapter took effect. 
Feldman v. Feldman, 205 Ark. 544, 169 
S.W.2d 866 (1943). 

County Residence. 



Chapter inapplicable where party suing This chapter does not regulate resi- 



DOMICILE 9-3-105 



dence as between two counties in this 
state. Feldman v. Feldman, 205 Ark. 544, 
169 S.W.2d 866 (1943). 



9-3-101. Chapter supplemental. 

It is the purpose of this chapter to set up a method, in addition to all 
others now provided by law, for determining the establishment of 
residence and domicile in Arkansas. 

History. Acts 1941, No. 355, § 12; 
A.S.A. 1947, § 34-1312. 

9-3-102. Voting privileges unaffected. 

Nothing in this chapter shall be construed to affect or extend the 
privilege of franchise to vote at any election held within the state 
because of having been admitted to become a resident domiciled within 
the state under this chapter. 

History. Acts 1941, No. 355, § 6; A.S.A. 
1947, § 34-1306. 

9-3-103. Jurisdiction of courts. 

Exclusive jurisdiction to declare a person a resident domiciled in the 
State of Arkansas is conferred upon the circuit courts. 

History. Acts 1941, No. 355, § 4; A.S.A. 
1947, § 34-1304. 

9-3-104. Administration by Secretary of State. 

The Secretary of State shall be the administrative officer of this 
chapter. 

History. Acts 1941, No. 355, § 2; A.S.A. 
1947, § 34-1302. 

9-3-105. Rules and regulations. 

The Secretary of State shall have power to make such rules and 
regulations as may be necessary for properly carrying into execution 
the various provisions of this chapter. 

History. Acts 1941, No. 355, § 3; A.S.A. 
1947, § 34-1303. 



9-3-106 FAMILY LAW 6 

9-3-106. Qualifications to become domiciled. 

(a) Any person who is a citizen of the United States may become a 
resident and domiciled in the State of Arkansas. 

(b) No person shall be admitted to become a resident domiciled in the 
State of Arkansas who has not resided in the state for at least thirty 
(30) days preceding his or her application for admission as a resident 
domiciled in the State of Arkansas. 

History. Acts 1941, No. 355, §§ 1, 5; 
A.S.A. 1947, §§ 34-1301, 34-1305. 

9-3-107. Sex or marital status not a bar. 

The right of any citizen of the United States to become a resident 
domiciled in the State of Arkansas shall not be denied or abridged 
because of sex or marital status. 

History. Acts 1941, No. 355, § 7; A.S.A. 
1947, § 34-1307. 

9-3-108. Effect of marriage to resident. 

Any woman who marries a resident domiciled under this chapter 
shall not become a resident domiciled in this state by reason of the 
marriage. However, if eligible to become a resident domiciled under this 
chapter, she may become a resident domiciled in this state upon full and 
complete compliance with all requirements of this chapter. 

History. Acts 1941, No. 355, § 8; A.S.A. 
1947, § 34-1308. 

9-3-109. Status of women who lost domicile by marriage. 

A woman who, before March 26, 1941, had ceased to be a resident 
domiciled in this state may become a resident domiciled in this state as 
provided in § 9-3-108. After having received a certificate of domicile, 
she shall have the same status as if her marriage had taken place after 
March 26, 1941. 

History. Acts 1941, No. 355, § 9; A.S.A. 
1947, § 34-1309. 

9-3-110. Declaration of intent — Publication of notice — Excep- 
tions. 

(a) Any person desiring to make a declaration of domicile under this 
chapter shall declare on oath before the clerk of any court authorized 
under this chapter to have jurisdiction, or the clerk's authorized deputy, 
in the county in which the person owns real estate and has resided for 
thirty (30) days after reaching eighteen (18) years of age, that it is his 
or her bona fide intention to become a resident domiciled in the State of 



7 DOMICILE 9-3-111 

Arkansas and that he or she renounces his or her residence and 
domicile in the state in which he or she was last domiciled. 

(b)(1)(A) The declaration shall set forth the name, date of birth, place 
of birth, occupation, personal description, name of the state and 
address of last residence, and the state in which he or she owns real 
or personal property. 

(B) The declaration shall also state the name of his or her spouse, 
the date of the spouse's birth, the place of their marriage, the name 
of each child and the date of each child's birth/the name of the state, 
and the address at the date of the declaration. 

(2)(A) The declaration shall have attached a certified copy of the 
notice published thirty (30) days prior to the declaration renouncing 
domicile in the states in which he or she owned real or personal 
property and in which the person formerly resided. 

(B) The notice shall have been given by publication in the manner 

provided for the service of summons by publication or upon absentees 

by the laws of the state or states in which the notices are published. 

(c)(1) No resident domiciled in the State of Arkansas in conformity 

with the law in force at the date of the declaration who has declared his 

or her intention to become a resident domiciled in this state shall be 

required to renew the declaration. 

(2) Any person who, on or after March 26, 1941, has become a 
resident domiciled in this state under the provisions of the common law 
of the state or of § 9-12-307 shall not be required to make a declaration 
as provided in this chapter. 

History. Acts 1941, No. 355, §§ 10, 12; 
A.S.A. 1947, §§ 34-1310, 34-1312. 

9-3-111. Petition for domicile. 

(a)(1) Not less than ninety (90) days nor more than two (2) years 
after a declaration of intention has been made, the person shall make 
and file in duplicate a petition in writing. 

(2) The petition shall be signed by the applicant in his or her own 
handwriting and duly verified. 

(b)(1)(A) In the petition, the applicant shall state his or her full 
name, place of residence, street number if possible, occupation, the 
date and place of birth, the state where he or she last resided, the 
date and place of his or her first address within this state, and the 
time when and place and name of the court where he or she declared 
an intention to become a resident domiciled in the State of Arkansas. 

(B) If the applicant is married, he or she shall state the name of his 
or her spouse and, if possible, the spouse's place of residence at the 
time of filing the petition. 

(C) If the applicant has children, he or she shall state the name, 
date, and place of birth, and place of residence of each child living at 
the time of filing the petition. 



9-3-112 FAMILY LAW 8 

(2)(A) The petition shall set forth that it is his or her intention to 
become a resident domiciled in the State of Arkansas, that he or she 
renounces absolutely domicile in the state in which he or she last 
resided or was domiciled, and that it is his or her intention to reside 
permanently in the State of Arkansas. 

(B) The petition shall set forth whether he or she has been denied 
admission as a resident domiciled in the State of Arkansas and, if so, 
the ground or grounds of the denial, the court in which such decision 
was rendered, and that the cause for the denial has since been cured 
or removed and shall set forth every fact material to becoming a 
resident domiciled in the State of Arkansas and required to be proved 
upon the final hearing of his or her application. 

(c) The petition shall be verified by the affidavits of at least two (2) 
credible witnesses, who are citizens of the State of Arkansas and who 
state in their affidavits that they personally know the applicant to have 
been a resident of the State of Arkansas for a period of at least ninety 
(90) days continuously next prior to the date of filing of his or her 
petition and that they each have personal knowledge that the petitioner 
is a person of good moral character and that he or she is in every way 
qualified in their opinion to become and to be a resident domiciled in the 
State of Arkansas. 

(d) A petition to become a resident domiciled in the State of Arkansas 
may be made and filed during term time or in vacation and shall be 
docketed the same day as filed. 

(e) However, in no case shall final action be had upon a petition until 
at least thirty (30) days have elapsed after its filing and the posting of 
the notice of the petition as provided for in § 9-3-112. 

History. Acts 1941, No. 355, §§ 13, 15; 
A.S.A. 1947, §§ 34-1313, 34-1314. 

9-3-112. Public notice of petition and final hearing. 

Immediately after filing of the petition, the clerk of the court shall 
give notice thereof by posting in a public and conspicuous place in his or 
her office or in the building in which the clerk's office is situated, under 
an appropriate heading, the name, residence, the state in which the 
petitioner formerly resided, the date and place of residence in Arkansas, 
the tentative date for final hearing of his or her petition, and the names 
of the witnesses whom the applicant expects to summon in his or her 
behalf. 

History. Acts 1941, No. 355, § 16; 
A.S.A. 1947, § 34-1315. 

9-3-113. Declarations of applicant. 

Before he or she is permitted under this chapter to be declared a 
resident domiciled in the State of Arkansas, the applicant shall declare 
in open court that he or she is a resident of Arkansas and that Arkansas 



9 DOMICILE 9-3-116 

is his or her domicile, that he or she absolutely and entirely renounces 
residence and domicile in the state in which he or she formerly resided, 
and that he or she will support and defend the Constitution and laws of 
the United States of America and of the State of Arkansas. 

History. Acts 1941, No. 355, § 14; 
A.S.A. 1947, § 34-1317. 

9-3-114. Hearings upon petitions — Final orders. 

(a)(1) Every final hearing upon a petition to become a resident 
domiciled in the State of Arkansas shall be held in open court before a 
judge of this state. 

(2) Every final order that may be made upon the petition shall be 
under the hand of the court and entered in full upon the records of the 
court. 

(b)(1)(A) The clerk of the court, if the applicant requests it, shall 

issue a subpoena for the witnesses named by the applicant to appear 

upon the day set for final hearing. 

(B) However, if the witnesses cannot be produced upon the final 

hearing, other witnesses may be summoned. 

(2) At the final hearing of the petition, the applicant and witnesses 
shall be examined under oath in the presence of the court. 

(c) The court upon proper finding shall enter a final order that the 
person applying to be declared a resident domiciled in the State of 
Arkansas has complied with the provisions of this chapter and is 
entitled to be declared a resident domiciled in the state, and the court 
shall order to be issued to the person the form of certificate of residence 
and domicile as shall be prescribed by the Secretary of State. 

History. Acts 1941, No. 355, §§ 4, 16, 
17; A.S.A. 1947, §§ 34-1304, 34-1315, 34- 
1316. 

9-3-115. Admission within thirty days of general election pro- 
hibited. 

No person shall be admitted as a resident domiciled in the State of 
Arkansas under this chapter, nor shall any certificate of residence and 
domicile be issued by any court, within thirty (30) days preceding the 
holding of any general election within the state. 

History. Acts 1941, No. 355, § 6; A.S.A. 
1947, § 34-1306. 

9-3-116. Admission of surviving spouse and minor children. 

When any person who has declared his or her intention to become a 
resident domiciled in the State of Arkansas dies before he or she has 
received a certificate from the Secretary of State showing him or her to 
be a resident domiciled in this state, the surviving spouse and minor 



9-3-117 FAMILY LAW 10 

children of the person, by complying with the other provisions of this 
chapter, may become residents domiciled in the State of Arkansas 
without making any declaration of intention. 

History. Acts 1941, No. 355, § 11; 
A.S.A. 1947, § 34-1311. 

9-3-117. Duties of clerks of court. 

(a)(1) It shall be the duty of the clerk of the court exercising 
jurisdiction in matters of residence and domicile to send to the Secre- 
tary of State at Little Rock, within thirty (30) days after the issuance of 
a certificate of residence and domicile in the State of Arkansas, a 
duplicate of the certificate, and to make and keep on file in his or her 
office a stub for each certificate so issued by him or her. 

(2) On the certificate shall be entered a memorandum of all the 
essential facts set forth in the certificate. 

(b)(1) It shall also be the duty of the clerk of the court to report to the 
Secretary of State, within thirty (30) days after the final hearing and 
decision of the court, the name of every person who was denied 
residence and domicile under the provisions of this chapter. 

(2) The clerk shall furnish to the Secretary of State duplicates of all 
petitions within thirty (30) days after the filing of the petitions and 
certified copies of other proceedings and orders instituted in or issued 
out of the court affecting or relating to residence and domicile as 
provided for under this chapter, as may be required from time to time 
by the Secretary of State. 

History. Acts 1941, No. 355, § 18; 
A.S.A. 1947, § 34-1318. 

9-3-118. Clerk's fees — Deposits for witness expenses. 

(a)(1) The clerk of the court exercising jurisdiction in matters pro- 
vided for under this chapter shall charge, collect, and account for the 
following fees in each proceeding: 

(A) For receiving and filing a declaration of intention and issuing 
a duplicate, five dollars ($5.00); 

(B) For making, filing, and docketing the petition of a person 
petitioning for admission under this chapter as a resident domiciled 
in the State of Arkansas and for the final hearing, twenty-five dollars 
($25.00); 

(C) For entering the final order and issuing certificate of residence 
and domicile thereunder, if granted, twenty-five dollars ($25.00). 
(2) The fees collected by the clerk of the court in the residence and 

domicile proceeding shall be paid into the county general fund. 

(b)(1) In addition to the fees required by this section and upon the 
filing of the petition to become a resident domiciled in the State of 
Arkansas, the petitioner shall deposit with, and pay to, the clerk of the 
court a sum of money sufficient to cover the expenses of subpoenaing 



11 DOMICILE 9-3-119 

and paying the legal fees of any witnesses for whom he or she may 
request a subpoena. 

(2) Upon the final discharge of the witnesses, the witnesses shall 
receive, if they demand from the clerk, the customary and usual fees 
from the moneys that the petitioner shall have paid to the clerk for such 
purposes. The residue, if any, shall be returned by the clerk to the 
petitioner. 

History. Acts 1941, No. 355, § 19; 
A.S.A. 1947, § 34-1319. 

9-3-119. Cancellation of certificate — Renunciation of residence 
and domicile. 

(a)(1) It shall be the duty of the prosecuting attorney of a county, 

upon affidavit showing good cause, to institute proceedings in any court 

having jurisdiction under this chapter for the purpose of setting aside 

and cancelling any certificate issued under this chapter on the ground 

of fraud or on the ground that the certificate was illegally procured. 

(2)(A) In any such proceeding, the party holding the certificate 

alleged to have been fraudulently or illegally procured shall have 

sixty (60) days' personal notice in which to make answer to the 

petition of the State of Arkansas. 

(B) If the holder of the certificate is absent from the state or from 
the district in which he or she last had residence, the notice shall be 
given by publication in the manner provided for the service of 
summons by publication or upon absentees by the laws of the state. 

(3) If any person who secures a certificate of residence and domicile 
under the provisions of this chapter shall, within two (2) years after the 
issuance of the certificate, cease to reside in the state more than thirty 
(30) days in any one (1) year, it shall be considered prima facie evidence 
of a lack of intention on the part of the person to become a permanent 
resident of the state at the time of the filing of the application for a 
certificate of residence and domicile and, in the absence of contrary 
evidence, it shall be sufficient evidence, in the proper proceeding, to 
authorize the cancellation of his or her certificate of residence and 
domicile as fraudulent. 

(b)(1) Not less than two (2) years after a certificate of residence and 
domicile has been issued under this chapter, the person to whom the 
certificate has been issued may file a petition signed in duplicate in his 
or her own handwriting, duly verified, which shall state his or her full 
name, his or her place of residence with the street number, if possible, 
his or her occupation, his or her date and place of birth, the state in 
which he or she intends to reside, the date and place of his or her first 
address within this state, the time when and place and name of the 
court where he or she declared his or her intention to become a resident 
domiciled in the State of Arkansas, and the name of the court where he 
or she received his or her certificate of residence and domicile. If 
married, he or she shall state the name of his or her spouse, his or her 



9-3-120 FAMILY LAW 12 

place of residence at the time of filing this petition, and if he or she has 
children, the name, date, and place of birth, and place of residence of 
each child living at the time of filing this petition. 

(2) The petition shall set forth that he or she renounces absolutely 
his or her residence and domicile in the State of Arkansas and that it is 
his or her intention to reside permanently in a state other than 
Arkansas. 

(c)(1) Whenever a certificate of residence and domicile is set aside or 
cancelled as provided in this section, the court in which the judgment or 
decree is rendered shall make an order cancelling the certificate and 
shall order a certified copy of the judgment sent to the Secretary of 
State. 

(2)(A) If the certificate was not originally issued by the court making 
the order, the court shall direct the clerk of the court to transmit a 
copy of the order and judgment to the court out of which the 
certificate of residence and domicile was originally issued. 

(B) It shall be the duty of the clerk of the court receiving the 
certified copy of the order and judgment of the court to enter the 
certified copy of the order and judgment of record and to cancel the 
original certificate of residence and domicile upon the records and to 
notify the Secretary of State of the cancellation. 

History. Acts 1941, No. 355, § 20; 
A.S.A. 1947, § 34-1320. 

9-3-120. Certified copies of papers, etc., as evidence. 

Certified copies of all papers, documents, certificates, and records 
required to be used, filed, recorded, or kept under any and all of the 
provisions of this chapter shall be admitted in evidence equally with the 
originals in any and all proceedings under this chapter and in all cases 
in which the originals might be admissible as evidence. 



History. Acts 1941, No. 355, § 3; A.S.A. 




1947, § 34-1303. 




CHAPTER 4 


ARKANSAS DOMESTIC PEACE ACT 


SECTION. 


SECTION. 


9-4-101. Title. 


9-4-106. Program requirements. 


9-4-102. Definitions. 


9-4-107. Fiscal requirements. 


9-4-103. Duties of the Arkansas Child 


9-4-108. Training requirements. 


Abuse/Rape/Domestic Vio- 


9-4-109. Right of entry. 


lence Commission. 


9-4-110. Reports. 


9-4-104. Receipt of money. 


9-4-111. Disclosure of information. 


9-4-105. Disbursement of funds. 


9-4-112. Immunity from civil liability. 



13 ARKANSAS DOMESTIC PEACE ACT 9-4-102 

RESEARCH REFERENCES 

Ark. L. Rev. Note, Nefv. Ag Services of Landlord's Liens, 56 Ark. L. Rev. 871 
America, Inc.: Revised Article 9 Brings (2004). 
Uncertainty to Holders of Agricultural 



9-4-101. Title. 

This chapter shall be known and may be cited as the "Arkansas 
Domestic Peace Act". 

History. Acts 2003, No. 1276, § 1. 

RESEARCH REFERENCES 

U. Ark. Little Rock L. Rev. Survey of sembly, Family Law, Domestic Peace Act, 
Legislation, 2003 Arkansas General As- 26 U. Ark. Little Rock L. Rev. 415. 

9-4-102. Definitions. 

As used in this chapter: 

(1) "Advocate" means an employee, supervisor, or administrator of a 
shelter; 

(2) "Commission" means the Arkansas Child Abuse/Rape/Domestic 
Violence Commission; 

(3) "Domestic abuse" means: 

(A) Physical harm, bodily injury, or assault between family or 
household members; 

(B) The infliction of fear of imminent physical harm, bodily injury, 
or assault between family or household members; or 

(C) Any sexual conduct between family or household members, 
whether minors or adults, that constitutes a crime under the laws of 
this state; 

(4) "Family or household members" means: 

(A) Spouses; 

(B) Former spouses; 

(C) Parents; 

(D) Children; 

(E) Persons related by blood within the fourth degree of consan- 
guinity; 

(F) Persons who presently cohabit or in the past cohabited to- 
gether; and 

(G) Persons who presently have a child in common; 

(5) "Shelter" means any entity that: 

(A) Provides services including food, housing, advice, counseling, 
and assistance to victims of domestic abuse and their minor depen- 
dent children in this state; and 

(B) Meets the program, fiscal, and training requirements of this 
chapter; 



9-4-103 FAMILY LAW 14 

(6) "Victim" means any individual who: 

(A) Is eighteen (18) years of age or older, is a minor who has his or 
her disabilities removed, or is a married individual under eighteen 
(18) years of age; 

(B) Is the victim of domestic abuse; and 

(C) Seeks services at a shelter; and 

(7) "Volunteer" means any person who donates his or her time to 
provide services to victims at a shelter. 

History. Acts 2003, No. 1276, § 1. 

9-4-103. Duties of the Arkansas Child Abuse/Rape/Domestic Vio- 
lence Commission. 

(a) Regarding the administration of the Domestic Peace Fund and an 
entity receiving funding under this chapter, the Arkansas Child Abuse/ 
Rape/Domestic Violence Commission or its designee, to the extent 
funding is appropriated and available, shall: 

(1) Annually evaluate each shelter for compliance with the program, 
fiscal, and training requirements under this chapter; 

(2) Promulgate rules, regulations, procedures, and forms for the 
evaluation of each shelter; 

(3) Adopt a uniform system of recordkeeping to ensure the proper 
handling of funds by shelters; 

(4) Provide training and technical assistance to shelters to ensure 
minimum standards of service delivery; 

(5) Serve as a clearinghouse for information relating to domestic 
abuse; and 

(6) Provide educational programs on domestic abuse for the benefit of 
the general public, victims, specific groups of persons, and other 
persons as needed. 

(b)(1) The commission may enter into contracts with any entity to 
fulfill its duties under this chapter. 

(2) The entity must meet the following requirements: 

(A) The entity is organized as a statewide nonprofit corporation 
that provides services, community education, and technical assis- 
tance to domestic violence shelters in the state; and 

(B) The entity is affiliated with one (1) or more of the following: 
(i) The National Coalition Against Domestic Violence; 

(ii) The National Network to End Domestic Violence; or 
(iii) The Battered Women's Justice Project. 

History. Acts 2003, No. 1276, § 1. 

9-4-104. Receipt of money. 

Under this chapter and in the administration of the Domestic Peace 
Fund, the Arkansas Child Abuse/Rape/Domestic Violence Commission 
shall not accept money or other assistance from the federal government 



15 ARKANSAS DOMESTIC PEACE ACT 9-4-106 

or any other entity or person if the acceptance would obligate the State 
of Arkansas except to the extent that money is available in the fund. 

History. Acts 2003, No. 1276, § 1. 

9-4-105. Disbursement of funds. 

(a) The Arkansas Child Abuse/Rape/Domestic Violence Commission 
may disburse money appropriated from the Domestic Peace Fund 
exclusively for the following purposes: 

(1) To satisfy contractual obligations made to perform its duties 
under this section; 

(2) To make grants to shelters that meet the requirements of this 
section; and 

(3) To compensate the commission or its designee for administration 
costs associated with the performance of duties under this chapter. 

(b) The commission shall collect a one-percent-fee not to exceed 
seven thousand five hundred dollars ($7,500) annually from the fund 
for administrative and operational costs incurred under this chapter. 

History. Acts 2003, No. 1276, § 1. 

9-4-106. Program requirements. 

Every shelter shall: 

(1) Develop and implement a written nondiscrimination policy to 
provide services without regard to race, religion, color, age, marital 
status, national origin, ancestry, or sexual preference; 

(2) Provide a facility that is open, accessible, and staffed by an 
advocate or a volunteer each day of the calendar year and twenty-four 
(24) hours each day; 

(3) Provide emergency housing and related supportive services in a 
safe, protective environment for victims of domestic abuse and their 
children; 

(4)(A) Provide a crisis telephone hotline that is answered by an 
advocate or a volunteer who meets the training requirements under 
this chapter each day of the calendar year and twenty-four (24) hours 
each day. 

(B) The crisis telephone hotline shall not be answered by an 
answering machine, answering service, or mobile telephone; 
(5)(A) Require all advocates and volunteers who provide direct 
services to victims to sign a written confidentiality agreement that 
prohibits the release of the following: 

(i) The names or other personal and identifying information about 
the victims who are served at the shelter; and 

(ii) The names or other personal and identifying information about 
the family or household members of the victims who are served at the 
shelter. 

(B) The confidentiality agreement shall not apply to advocates who 
testify in court. 



9-4-107 FAMILY LAW 16 

(C) The confidentiality agreement shall not prevent disclosure 
from federal grant review, audit, or reporting; 

(6) Develop and implement a written plan for outreach efforts to aid 
victims of domestic violence; 

(7) Provide peer support groups for victims; 

(8) Provide assistance and court advocacy for victims seeking orders 
of protection; and 

(9) Provide training and educational information on domestic vio- 
lence for professionals, community organizations, and interested indi- 
viduals. 

History. Acts 2003, No. 1276, § 1. 

9-4-107. Fiscal requirements. 

Every shelter shall: 

(1) Incorporate in this state as a private nonprofit corporation that is 
exempt from taxation under § 501(c)(3) of the Internal Revenue Code, 
26 U.S.C. § 501(c)(3), and that has the primary purpose of providing 
services to victims of domestic abuse or domestic violence; 

(2) Be governed by a board of directors; 

(3) Develop and implement written personnel policies that state the 
shelter's employment practices; 

(4) Develop and implement written procedures that conform with the 
uniform system of recordkeeping developed by the Arkansas Child 
Abuse/Rape/Domestic Violence Commission or its designee to ensure 
proper handling of funds; and 

(5) Provide the commission or its designee with statistical data that 
states the following: 

(A) The type of services provided by the shelter; and 

(B) The number of victims and children served each year. 

History. Acts 2003, No. 1276, § 1. 

9-4-108. Training requirements. 

Every shelter shall: 

(1)( A) Require each member of its board of directors to attend an 
orientation approved by the Arkansas Child Abuse/Rape/Domestic 
Violence Commission or its designee within six (6) months after 
joining the board of directors. 

(B) The orientation shall include an explanation of the dynamics of 
domestic violence and the role of a board member; 
(2)(A) Require each advocate who provides direct services to victims 
to attend fifteen (15) hours of initial staff training approved by the 
commission or its designee. 

(B) Initial staff training shall include the following topics of 
instruction: 

(i) Crisis intervention; 

(ii) Case management; 



17 ARKANSAS DOMESTIC PEACE ACT 9-4-110 

(iii) Safety planning; 

(iv) Individual or group facilitation; and 

(v) Proper procedure for answering the crisis telephone hotline; 
(3)(A) Require each advocate who provides direct services to victims 
to attend ten (10) hours of continuing education annually that is 
approved by the commission or its designee. 

(B) Continuing education shall include the following topics of 
instruction: 

(i) Crisis intervention; 

(ii) Case management; 

(iii) Safety planning; 

(iv) Individual or group facilitation; and 

(v) The proper procedure for answering the crisis telephone hot- 
line; and 

(4)(A) Require volunteers who provide direct services to victims to 
attend ten (10) hours of initial training approved by the commission 
or its designee. 

(B) Initial staff training shall include the following topics of 
instruction: 

(i) Crisis intervention; 

(ii) Case management; 

(iii) Safety planning; 

(iv) Individual or group victim service session facilitation; and 

(v) The proper procedure for answering the crisis telephone hot- 
line. 

History. Acts 2003, No. 1276, § 1. 

9-4-109. Right of entry. 

The Arkansas Child Abuse/Rape/Domestic Violence Commission or 
its designee may enter and inspect the premises of a shelter to perform 
an annual evaluation or to otherwise determine compliance with this 
chapter. 

History. Acts 2003, No. 1276, § 1. 

9-4-110. Reports. 

The Arkansas Child Abuse/Rape/Domestic Violence Commission or 
its designee shall provide an annual report by October 1 of each year to 
the Chair of the Senate Interim Committee on Children and Youth and 
the Chair of the House Committee on Aging, Children and Youth, 
Legislative and Military Affairs containing the following information: 

(1) The incidence of domestic violence in this state based on infor- 
mation obtained from shelters under this chapter; 

(2) A description of shelters that meet the requirements of and 
receive funding from the commission or its designee under this chapter; 
and 



9-4-111 FAMILY LAW 18 

(3) The number of persons assisted by the shelters that receive 
funding from the commission or its designee under this chapter. 

History. Acts 2003, No. 1276, § 1. 

9-4-111. Disclosure of information. 

Information received by the Arkansas Child Abuse/Rape/Domestic 
Violence Commission, its employees, or its designees through files, 
reports, evaluations, inspections, or otherwise shall be confidential 
information and shall not be disclosed publicly in a manner as to 
identify individuals or facilities. 

History. Acts 2003, No. 1276, § 1. 

9-4-112. Immunity from civil liability. 

The Arkansas Child Abuse/Rape/Domestic Violence Commission, its 
employees, and its designees shall be immune from civil liability for 
performing their duties under this chapter. 

History. Acts 2003, No. 1276, § 1. 

CHAPTER 5 
ARKANSAS CHILD SAFETY CENTER ACT 



Eligibility for contracts. 

Interagency memorandum of un- 
derstanding. 

Fiscal requirements. 

Right of entry. 

Reports. 

Admissibility of statements by 
an alleged child victim. 

Immunity from civil liability. 



SECTION. 




SECTION. 


9-5-101. 


Title. 


9-5-109. 


9-5-102. 


Statewide purpose. 


9-5-110. 


9-5-103. 


Definitions. 




9-5-104. 


Duties of the Arkansas Child 


9-5-111. 




Abuse/Rape/Domestic Vio- 


9-5-112. 




lence Commission. 


9-5-113. 


9-5-105. 


Receipt of money. 


9-5-114. 


9-5-106. 


Disbursement of funds. 




9-5-107. 


Program requirements. 


9-5-115. 


9-5-108. 


Access to specialized medical ex- 
aminations and psycho- 
logical examinations. 




9-5-101. Title. 





This chapter shall be known and may be cited as the "Arkansas Child 
Safety Center Act". 

History. Acts 2007, No. 703, § 5. 

9-5-102. Statewide purpose. 

The statewide purpose of this chapter is to establish a program that 
provides a comprehensive, multidisciplinary, nonprofit, and coordi- 
nated response to the investigation of sexual abuse of children and 



19 ARKANSAS CHILD SAFETY CENTER ACT 9-5-105 

serious physical abuse of children in a child-focused and child-friendly 
facility known as a "child safety center". 

History. Acts 2007, No. 703, § 5. 

9-5-103. Definitions. 

As used in this chapter: 

(1) "Child safety center" means a not-for-profit child-friendly facility 
that provides a location for forensic interviews, forensic medical exami- 
nations, and forensic mental health examinations during the course of 
a child maltreatment investigation; and 

(2) "Commission" means the Arkansas Child Abuse/Rape/Domestic 
Violence Commission. 

History. Acts 2007, No. 703, § 5. 

9-5-104. Duties of the Arkansas Child Abuse/Rape/Domestic Vio- 
lence Commission. 

(a) Regarding the administration of the Arkansas Children's Advo- 
cacy Center Fund and an entity receiving funding under this chapter, 
the Arkansas Child Abuse/Rape/Domestic Violence Commission or its 
designee, to the extent funding is appropriated and available, shall: 

(1) Annually evaluate each child safety center for compliance with 
the program, fiscal, and training requirements under this chapter; 

(2) Promulgate rules and procedures to implement this chapter and 
the forms for the evaluation of each child safety center; 

(3) Adopt a uniform system of recordkeeping and reporting to ensure 
the proper handling of funds by child safety centers and to ensure 
uniformity and accountability by child safety centers; and 

(4) Provide training and technical assistance to child safety centers 
to ensure best practice standards for forensic interviews and forensic 
medical examinations. 

(b) The commission may enter into contracts with any entity to fulfill 
its duties under this chapter. 

History. Acts 2007, No. 703, § 5. 

9-5-105. Receipt of money. 

Under this chapter and in the administration of the Arkansas 
Children's Advocacy Center Fund, the Arkansas Child Abuse/Rape/ 
Domestic Violence Commission shall not accept money or other assis- 
tance from the federal government or any other entity or individual if 
the acceptance would obligate the State of Arkansas except to the 
extent that money is available in the fund. 

History. Acts 2007, No. 703, § 5. 



9-5-106 FAMILY LAW 20 

9-5-106. Disbursement of funds. 

(a) The Arkansas Child Abuse/Rape/Domestic Violence Commission 
may disburse money appropriated from the Arkansas Children's Advo- 
cacy Center Fund exclusively for the following purposes: 

(1) To satisfy contractual obligations made to perform its duties 
under this section; 

(2) To make grants to child safety centers that meet the require- 
ments of this section; and 

(3) To compensate the commission or its designee for administration 
costs associated with the performance of duties under this chapter. 

(b)(1) The commission may disburse funds, to the extent appropri- 
ated and available, from the Arkansas Children's Advocacy Center 
Fund to a qualified medical entity or a qualified mental health entity for 
education, peer review, and consultation to medical service examiners 
and mental health service examiners qualified under this section for 
children interviewed and examined at the child safety centers. 

(2) A medical entity selected shall have physicians who: 

(A) Have: 

(i) Subspecialty training in pediatric medicine, emergency medi- 
cine, pediatric gynecology, family practice, or obstetrics and gynecol- 
ogy; and 

(ii) Specialized training in the evaluation of child sexual abuse 
cases; 

(B) Provide initial evaluations of allegedly abused and assaulted 
children and adolescents, perform second opinion examinations for 
less experienced examiners, and review photographs and videotapes 
for other examiners; 

(C) Hold a teaching position or a faculty position at a college of 
medicine and provide training and workshops on child sexual abuse- 
related issues; 

(D) Hold membership in professional organizations on child abuse- 
related and neglect-related issues; 

(E) Work for or are affiliated with a regional center for the medical 
evaluation of allegedly sexually abused children; and 

(F) Regularly testify in cases of alleged child sexual abuse. 

(3) A mental health entity shall have professionals who: 

(A) Are licensed mental health professionals; 

(B) Have: 

(i) Specialized training in assessment and treatment of children 
and families; and 

(ii) Specialized training in trauma and child abuse; 

(C) Provide assessment and treatment of allegedly abused chil- 
dren and adolescents; 

(D) Provide consultation and training for other providers and 
multidisciplinary teams; 

(E) Hold a teaching or faculty position; 

(F) Hold membership in professional organizations on child abuse- 
related and neglect-related issues; 



21 ARKANSAS CHILD SAFETY CENTER ACT 9-5-108 

(G) Work for or are affiliated with a regional center for the medical 
evaluation of allegedly sexually abused children; and 

(H) Regularly testify in cases of alleged child sexual abuse. 

History. Acts 2007, No. 703, § 5. 

9-5-107. Program requirements. 

Each child safety center shall: 

(1) Provide a comfortable, private, child-friendly setting that is both 
physically and psychologically safe for diverse populations of children 
and their families; 

(2) Be a part of a multidisciplinary team; 

(3) Have a nonprofit entity responsible for program, fiscal operations 
established, and implement best administrative practices; 

(4) Promote policies, practices, and procedures that are culturally 
competent; 

(5) Promote forensic interviews that are: 

(A) Legally sound; 

(B) Of a neutral, fact-finding nature; and 

(C) Coordinated to avoid duplicative interviewing; 

(6) Provide or provide access to, or both, specialized medical evalu- 
ations and treatment services to all child safety center clients; 

(7) Provide team discussion and information-sharing regarding the 
investigation, case, and status needed on a routine basis by the child 
and family; and 

(8) Develop and implement a system for monitoring case progress 
and tracking case outcomes. 

History. Acts 2007, No. 703, § 5. 

9-5-108. Access to specialized medical examinations and psy- 
chological examinations. 

(a) The child safety centers shall provide or provide access to 
specialized medical examinations and psychological examinations for 
their clients, to the extent funding is appropriated and available. 

(b) Medical providers operating under this chapter shall be capable 
of performing: 

(A) A complete medical history; 

(B) An evaluation of a child or an adolescent for evidence of sexual 
abuse or sexual assault including photo documentation of examination 
findings for recognition of genital and anal findings that are clearly 
normal or normal variants and common patterns of healed injuries; 

(C) Collection of forensic evidence; 

(D) Evaluation for sexually transmitted diseases, pregnancy, and 
other related sexual abuse and assault; 

(E) Performance of tests and treatment as appropriate; and 

(F) Testimony in court as to the findings. 



9-5-109 FAMILY LAW 22 

History. Acts 2007, No. 703, § 5. 

9-5-109. Eligibility for contracts. 

(a) A public entity or a nonprofit entity is eligible for a contract under 
§ 9-5-107 if the entity: 

(1) Has a signed memorandum of understanding as provided by 
§ 9-5-110; 

(2) Operates under the authority of a governing board; 

(3) Participates on a multidisciplinary team of persons involved in 
the investigation or prosecution of child abuse cases; 

(4) Has developed a method of statistical information gathering on 
children receiving services through the child safety center and shares 
the statistical information with the statewide organization, the Depart- 
ment of Human Services, and the Attorney General upon request; 

(5) Has a volunteer program; 

(6) Employs an executive director who is answerable to the board of 
directors of the public or nonprofit entity and who is not the exclusive 
salaried employee of any public agency partner; 

(7) Provides for ongoing training for child safety center staff to 
provide best practices in forensic interviewing and medical and mental 
examinations to children who are examined at child safety centers; and 

(8) Operates under a working protocol that includes, at a minimum, 
a statement of: 

(A) The child safety center's mission; 

(B) Each agency's role and commitment to the child safety center; 

(C) The type of cases to be handled by the child safety center; 

(D) The child safety center's procedures for conducting case re- 
views and forensic interviews and for ensuring access to specialized 
medical services and mental health services; and 

(E) The child safety center's policies regarding confidentiality and 
conflict resolution. 

(b)(1) The commission may waive the requirements specified in 
subsection (a) of this section if the commission determines that the 
waiver will not adversely affect the child safety center's ability to carry 
out its duties under this chapter. 

(2) Any waiver that is granted under subdivision (b)(1) of this section 
shall be identified in the written contract with the child safety center. 

(c) Funds shall be withheld from an established child safety center 
that no longer meets the standards for funding. 

History. Acts 2007, No. 703, § 5. 

9-5-110. Interagency memorandum of understanding. 

(a) Before a child safety center may be established under this 
chapter, a memorandum of understanding regarding the agreement on 
the levels of participation of each entity shall be executed among: 

(1) The Division of Children and Family Services of the Department 
of Human Services; 



23 ARKANSAS CHILD SAFETY CENTER ACT 9-5-111 

(2) The Crimes Against Children Division of the Department of 
Arkansas State Police; 

(3) Representatives of county and municipal law enforcement agen- 
cies that investigate child abuse in the area to be served by the child 
safety center; and 

(4) The prosecuting attorney. 

(b) A memorandum of understanding executed under this section 
shall include the agreement on the levels of each entity's participation 
and cooperation in: 

(1) Developing a cooperative, multi disciplinary-team approach to 
investigations of child abuse; 

(2) Reducing, to the greatest extent possible, the number of inter- 
views required of a victim of child abuse with the goal of minimizing the 
negative impact of the investigation on the child; and 

(3) Developing, maintaining, and supporting, through the child 
safety center, an environment that emphasizes the best interests of 
children and that provides best practices in child abuse investigations. 

(c) A memorandum of understanding executed under this section 
may include the agreement of one (1) or more participating entities to 
provide office space and administrative services necessary for the child 
safety center's operation. 

History. Acts 2007, No. 703, § 5. 

9-5-111. Fiscal requirements. 

Every child safety center shall: 

(1) Incorporate in this state as a private nonprofit corporation that is 
exempt from taxation under § 501(c)(3) of the Internal Revenue Code of 
1986, 26 U.S.C. § 501(c)(3), as it existed on January 1, 2007, and that 
has the primary purpose of providing services to child victims of child 
abuse; 

(2) Be governed by a board of directors; 

(3) Develop and implement written personnel policies that state the 
child safety center's employment practices; 

(4) Develop and implement written procedures that conform with the 
uniform system of recordkeeping developed by the Arkansas Child 
Abuse/Rape/Domestic Violence Commission or its designee to ensure 
proper handling of funds; and 

(5) Provide the commission or its designee with statistical data that 
states the following: 

(A) The type of investigative services and the number of children 
served by each type of investigative service provided by the child 
safety centers; 

(B) The number, race, age, and gender of the children served each 
year; and 

(C) The outcomes of services to children provided by the child 
safety centers, including without limitation: 

(i) The number of founded maltreatment reports; and 



9-5-112 FAMILY LAW 24 

(ii) The number of unfounded maltreatment reports and the ratio 
between founded and unfounded reports for each year. 

History. Acts 2007, No. 703, § 5. 

9-5-112. Right of entry. 

The Arkansas Child Abuse/Rape/Domestic Violence Commission or 
its designee may enter the premises of a child safety center at any time 
to ensure compliance with this chapter and the rules promulgated by 
the commission under this chapter. 

History. Acts 2007, No. 703, § 5. 

9-5-113. Reports. 

The Arkansas Child Abuse/Rape/Domestic Violence Commission or 
its designee shall provide an annual report by March 1 of each year to 
the Chair of the Senate Interim Committee on Children and Youth and 
the Chair of the House Committee on Aging, Children and Youth, 
Legislative and Military Affairs containing the following information: 

(1) The incidence of child abuse in this state based on information 
obtained from child safety centers under this chapter; 

(2) A description of child safety centers that meet the requirements 
of and receive funding from the commission or its designee under this 
chapter; 

(3) The number of children receiving investigative services by the 
child safety centers that receive funding from the commission or its 
designee under this chapter; and 

(4) Outcome data provided by the child safety centers. 

History. Acts 2007, No. 703, § 5. 

9-5-114. Admissibility of statements by an alleged child victim. 

Nothing in this chapter precludes the admissibility of statements by 
an alleged child victim outside the scope of the forensic interview 
conducted at a child safety center, provided that sufficient safeguards 
are present to satisfy the admissibility requirements set forth in the 
Arkansas Rules of Evidence, relevant case law, and constitutional 
requirements. 

History. Acts 2007, No. 703, § 5. 

9-5-115. Immunity from civil liability. 

The Arkansas Child Abuse/Rape/Domestic Violence Commission and 
its employees in their official capacities shall be immune from civil 
liability for performing their duties under this chapter. 

History. Acts 2007, No. 703, §§ 5, 18. 



25 GENERAL PROVISIONS 9-8-101 

CHAPTERS 6-7 

[Reserved] 

SUBTITLE 2. DOMESTIC RELATIONS 

CHAPTER 8 
GENERAL PROVISIONS 



subchapter. 

1. Court-Ordered Investigations or Studies. 

2. Arkansas Subsidized Guardianship Act. 

3. Restrictions on Unmarried Adults as Adoptive or Foster Parents. 

Subchapter 1 Court-Ordered Investigations or Studies 

section. sion involving children 

9-8-101. Definitions. Court order — Fee. 

9-8-102. Investigation, study, or supervi- 



A.C.R.C. Notes. Due to the enactment existing provisions of this chapter have 
of subchapter 2 by Acts 2007, No. 621, the been redesignated as subchapter 1. 



9-8-101. Definitions. 

As used in this subchapter: 

(1) "Child" means a person under eighteen (18) years of age; 

(2) "Division" means the Division of Children and Family Services of 
the Department of Human Services; 

(3) "Investigation" means the process of obtaining a home study, 
home report, home assessment, home evaluation, or marital study; 

(4) "Licensed social worker" means a social worker authorized to 
perform home studies or supervised visits under the Social Work 
Licensing Act, § 17-103-101 et seq.; 

(5) "Regulations" means regulations promulgated by the division for 
the purpose of implementing this subchapter pursuant to the Arkansas 
Administrative Procedure Act, § 25-15-201 et seq.; 

(6) "Study" means home study, home report, home assessment, home 
evaluation, or marital study; and 

(7) "Supervision" means periodic visitation to the home or school or 
other places for monitoring or observation to determine a child's 
situation or condition or to regulate or facilitate visitation and may 
include court appearances to provide testimony on the visitation. 



9-8-102 FAMILY LAW 26 

History. Acts 1991, No. 1081, § 1; vided public services, was repealed by 

2001, No. 1420, § 1. Acts 1991, No. 1081, § 1. The former 

Publisher's Notes. Former § 9-8-101, section was derived from Acts 1987, No. 

concerning the fee for court-ordered inves- 978, §§ 1-3. For present law, see § 9-8- 

tigations, etc., of children not being pro- 102. 

9-8-102. Investigation, study, or supervision involving children 
— Court order — Fee. 

(a)(1) If a court of the State of Arkansas requests or orders a licensed 
social worker of the court's choice to perform any investigation, study, 
or supervision involving the custody, placement, adoption, or other 
pertinent matter with regard to a child or children, the licensed social 
worker selected by the court may charge a fee that shall not exceed the 
fair market value of the investigation, study, or supervision. 

(2)(A) The Division of Children and Family Services of the Depart- 
ment of Human Services shall not be ordered by any court, except the 
juvenile division of circuit court, to conduct an investigation, study, or 
supervision unless the court has first determined the responsible 
party to be indigent. 

(B) The investigation, study, or supervision is to take place within 
the State of Arkansas. 

(b) When the court requests or orders a licensed social worker to 
perform an investigation, study, or supervision, the court shall specify 
the party or parties responsible for payment of the fee and may grant a 
reasonable period of time for payment. 

(c) If payment is not made within the established time frame as set 
forth in the court order or as prescribed by regulations, the obligation 
shall be considered a delinquent debt, as defined by regulation, and the 
licensed social worker may recover the fee as provided by law for the 
recovery of a debt. 

History. Acts 1991, No. 1081, § 2; 
1995, No. 1283, § 1; 2001, No. 1420, § 2; 
2003, No. 338, § 1. 

RESEARCH REFERENCES 

U. Ark. Little Rock L. Rev. Survey of sembly, Family Law, Home Study, 26 U. 
Legislation, 2003 Arkansas General As- Ark. Little Rock L. Rev. 408. 

Subchapter 2 — Arkansas Subsidized Guardianship Act 



agree- 



SECTION. 




SECTION. 




9-8-201. 


Title — Purpose. 


9-8-205. 


Guardianship subs 


9-8-202. 


Administration, funding, and 




ment. 




limitations. 


9-8-206. 


Subsidy amount. 


9-8-203. 


Promulgation of regulations. 


9-8-207. 


Records confidential 


9-8-204. 


Eligibility. 







27 GENERAL PROVISIONS 9-8-204 

9-8-201. Title — Purpose. 

(a) This subchapter shall be known and may be cited as the "Arkan- 
sas Subsidized Guardianship Act". 

(b) The purpose of this subchapter is to create the framework for 
subsidized guardianships in the event that funding becomes available 
for such a program. 

History. Acts 2007, No. 621, § 1. 

9-8-202. Administration, funding, and limitations. 

(a) Contingent upon adequate funding, appropriation, and position 
authorization, both programmatic and administrative, the Department 
of Human Services shall establish and administer a program of subsi- 
dized guardianship. 

(b) Guardianship subsidies and services for children under this 
program shall be provided out of funds appropriated to the department 
or made available to it from other sources and shall be subject to any 
restrictions as outlined in the funds appropriated or made available to 
the department. 

History. Acts 2007, No. 621, § 1. 

9-8-203. Promulgation of regulations. 

(a) The Department of Human Services shall promulgate rules and 
regulations to implement this program. 

(b) The department shall promulgate rules and regulations that 
include eligibility requirements in accordance with any requirements 
from the funding stream. 

History. Acts 2007, No. 621, § 1. 

9-8-204. Eligibility. 

(a) A child is eligible for a guardianship subsidy if the Department of 
Human Services determines the following: 

(1) The child has been removed from the custody of his or her parent 
or parents as a result of a judicial determination to the effect that 
continuation in the custody of the parent or parents would be contrary 
to the welfare of the child; 

(2) The department is responsible for the placement and care of the 
child; 

(3) Being returned home or being adopted is not an appropriate 
permanency option for the child; 

(4) Permanent placement with a guardian is in the child's best 
interest; 

(5) The child demonstrates a strong attachment to the prospective 
guardian and the guardian has a strong commitment to caring perma- 
nently for the child; 



9-8-205 FAMILY LAW 28 

(6) With respect to a child who has attained fourteen (14) years of 
age, the child has been consulted regarding the guardianship; 

(7) If permitted or required by the funding stream, the guardian is 
qualified pursuant to a means-based test; 

(8) If permitted or required by the funding stream, the necessary 
degree of relationship exists between the prospective guardian and the 
child; 

(9) The child has special needs; and 

(10) The child: 

(A) Is eligible for Title IV-E foster care maintenance payments; 
and 

(B) While in the custody of the department, resided in the home of 
the prospective relative guardian for at least six (6) consecutive 
months and the prospective relative guardian was licensed or ap- 
proved as meeting the licensure requirements as a foster family 
home. 

(b)(1) The department shall redetermine eligibility of the guardian- 
ship on an annual basis and shall include confirmation that the 
guardian is still providing care for the child. 

(2) If permitted or required by the funding stream, the annual 
redetermination of eligibility shall include whether or not the guardian 
is qualified pursuant to a means-based test. 

History. Acts 2007, No. 621, § 1; 2009, Amendments. The 2009 amendment 
No. 325, § 1. added (a)(10) and made related changes. 

9-8-205. Guardianship subsidy agreement. 

(a) A written guardianship subsidy agreement must be entered 
before the guardianship is established. 

(b) The guardianship subsidy agreement shall become effective upon 
entry of the order of guardianship. 

(c)(1) In the case of a child whose eligibility is based on a high risk for 
development of a serious physical, mental, developmental, or emotional 
condition, the guardianship subsidy agreement shall provide no guard- 
ianship subsidy until the child actually develops the condition. 

(2) No guardianship subsidy shall be made until adequate documen- 
tation is submitted by the guardian showing that the child has now 
developed the condition upon which eligibility was based. 

(3) Upon acceptance by the Department of Human Services that the 
child has developed the condition upon which eligibility was based, the 
guardianship subsidy shall be retroactive to the date the guardian 
submitted adequate documentation that the child developed the condi- 
tion. 

(d) No guardianship subsidy may be made for any child who has 
attained eighteen (18) years of age unless permitted by the funding 
stream. 

History. Acts 2007, No. 621, § 1. 



29 GENERAL PROVISIONS 9-8-207 

9-8-206. Subsidy amount. 

(a) The amount of the guardianship subsidy shall be determined 
through agreement between the guardian and the Department of 
Human Services but cannot exceed the current foster care board rate. 

(b) The amount of the guardianship subsidy shall be based on 
consideration of the circumstances and needs of the guardian and the 
child as well as the availability of other resources to meet the child's 
needs. 

History. Acts 2007, No. 621, § 1. 

9-8-207. Records confidential. 

(a) All subsidized guardianship records personally identifying a 
juvenile shall be confidential and shall not be released or otherwise 
made available except to the following persons or entities and to the 
extent permitted by federal law: 

(1) The guardian; 

(2) The attorney for the guardian; 

(3) The child; 

(4) The attorney ad litem for the child; 

(5) For purposes of review or audit by the appropriate federal or state 
agency; 

(6) A grand jury or court upon a finding that information in the 
record is necessary for the determination of an issue before the grand 
jury or court; 

(7)(A) Individual federal and state representatives and senators in 

their official capacity and their staff members with no redisclosure of 

information. 

(B) No disclosure of any information that identifies by name or 

address any recipient of a subsidy or service shall be made to any 

committee or legislative body; and 

(8) The administration of any federal program or federally assisted 
program that provides assistance, in cash or in kind, or services directly 
to individuals on the basis of need. 

(b)(1) Any person or agency to whom disclosure is made shall not 
disclose to any other person any personally identifying information 
obtained pursuant to this section. 

(2) Nothing in this subsection shall prevent subsequent disclosure by 
the guardian or the child. 

(3) Any person disclosing information in violation of this subsection 
shall be guilty of a Class C misdemeanor. 

History. Acts 2007, No. 621, § 1. 



9-8-301 FAMILY LAW 30 

Subchapter 3 — Restrictions on Unmarried Adults as Adoptive or 

Foster Parents 



SECTION. 

9-8-301. 
9-8-302. 
9-8-303. 
9-8-304. 


Finding and declaration. 
Public policy. 
Definition. 

Adoption and foster care of mi- 
nors. 


SECTION. 

9-8-305. 
9-8-306. 


Guardianship of minors. 
Regulations. 



Publisher's Notes. Initiated Measure this subchapter was adopted at the No- 

2008, No. 1, was initiated and adopted by vember 2008 general election, 

the people of Arkansas at the November Effective Dates. Init. Meas. 2008, No. 

2008 general election. The enactment of 1, § 7: Jan. 1, 2009. 



9-8-301. Finding and declaration. 

The people of Arkansas find and declare that it is in the best interest 
of children in need of adoption or foster care to be reared in homes in 
which adoptive or foster parents are not cohabiting outside of marriage. 

History. Init. Meas. 2008, No. 1, § 5. 

9-8-302. Public policy. 

The public policy of the state is to favor marriage as defined by the 
constitution and laws of this state over unmarried cohabitation with 
regard to adoption and foster care. 

History. Init. Meas. 2008, No. 1, § 4. 

9-8-303. Definition. 

As used in this subchapter, "minor" means an individual under 
eighteen (18) years of age. 

History. Init. Meas. 2008, No. 1, § 3. 

9-8-304. Adoption and foster care of minors. 

(a) A minor may not be adopted or placed in a foster home if the 
individual seeking to adopt or to serve as a foster parent is cohabiting 
with a sexual partner outside of a marriage that is valid under the 
Arkansas Constitution and the laws of this state. 

(b) The prohibition of this section applies equally to cohabiting 
opposite-sex and same-sex individuals. 

History. Init. Meas. 2008, No. 1, § 1. 



31 ADOPTION 9-8-306 

9-8-305. Guardianship of minors. 

This subchapter will not affect the guardianship of minors. 

History. Init. Meas. 2008, No 1, § 2. 

9-8-306. Regulations. 

The Director of the Department of Human Services or the successor 
agency or agencies responsible for adoption and foster care shall 
promulgate regulations consistent with this subchapter. 

History. Init. Meas. 2008, No. 1, § 6. 

CHAPTER 9 
ADOPTION 



subchapter 

1. General Provisions. 

2. Revised Uniform Adoption Act. 

3. Children in Public Custody — Consent to Adoption. 

4. Arkansas Subsidized Adoption Act. 

5. Voluntary Adoption Registry. 

6. Legal Representation. 

7. The Streamline Adoption Act. 



RESEARCH REFERENCES 



A.L.R. Marital status or relationship of 
prospective adopting parents. 2 A.L.R.4th 
555; 42 A.L.R.4th 776. 

Criminal liability of one arranging for 
adoption of child through other than li- 
censed child placement agency ("baby bro- 
ker acts"). 3 A.L.R.4th 468. 

Change in record of birthplace of 
adopted child. 14 A.L.R.4th 739. 

Race as factor in adoption proceedings. 
34 A.L.R.4th 167. 

Natural parent's parental rights as af- 
fected by consent to child's adoption by 
other natural parent. 37 A.L.R.4th 724. 

Spouse of adopting parent: consent to 
adoption. 38 A.L.R.4th 768. 

Sexual relationship between parties as 
affecting right to adopt. 42 A.L.R.4th 776. 

Validity of agreement to pay expenses of 
birth on condition that natural parents 
consent to adoption of child. 43 A.L.R.4th 
935. 

Parties in adoption proceedings. 48 
A.L.R.4th 860. 

Action for wrongful adoption based on 



misrepresentation of child's mental or 
physical condition or parentage. 56 
A.L.R.4th 375. 

Adoption as precluding testamentary 
gift under natural relative's will. 71 
A.L.R.4th 374. 

Post-adoption visitation by natural par- 
ents. 78 A.L.R.4th 218. 

Liability of public or private agency or 
its employees to prospective adoptive par- 
ents in contract or tort for failure to com- 
plete arrangement for adoption. 8 
A.L.R.5th 860. 

Validity of natural parent's "blanket" 
consent to adoption which fails to identify 
adoptive parents. 15 A.L.R.5th 1. 

Attorney malpractice in connection 
with services related to adoption of a 
child. 18A.L.R.5th892. 

Adoption of child by same-sex partners. 
27 A.L.R.5th 54. 

Adopted child as within class in testa- 
mentary gift. 36 A.L.R.5th 395. 

Adopted child as within class in deed or 
inter vivos trust instrument. 37 A.L.R.5th 
237. 



9-9-101 



FAMILY LAW 



32 



Rights of an unwed father to obstruct 
adoption of his child by withholding con- 
sent. 61 A.L.R.5th 151. 

"Wrongful adoption" causes of action 
against adoption agencies where children 
have or develop mental or physical prob- 
lems which are misrepresented or not 
disclosed to adoptive parents. 74 
A.L.R.5th 1. 

Determination of status of surrogate 
parents as legal or natural parents in 
contested surrogacy births. 77 A.L.R.5th 
567. 

Am. Jur. 2 Am. Jur. 2d, Adoption, § 1 et 
seq. 

Ark. L. Rev. Note, How a State's Inter- 



ests in a Child's Welfare Are Frustrated 
by Indiscriminate Application of the Final 
Judgment Rule: Arkansas Department of 
Human Services v. Lopez, 44 Ark. L. Rev. 
895. 

C.J.S. 2 C.J.S., Adoption, § 1 et seq. 

7 C.J.S., Atty & C, §§ 6, 7, 45. 

34 C.J.S., Ex & Ad, § 777. 

37 C.J.S., Fraud, §§ 28, 103. 

67A C.J.S., Parent & C, § 34. 

81 C.J.S., Soc Sec & PW, § 41. 

97 C.J.S., Witnesses, § 282. 

99 C.J.S., Workers' Comp, §§ 275-277. 

U. Ark. Little Rock L.J. Parness, Pro- 
spective Fathers and Their Unborn Chil- 
dren, 13 U. Ark. Little Rock L.J. 165. 



Subchapter 1 — General Provisions 



SECTION. 

9-9- 101. Surrender of custody of minor by 
hospital or birthing center. 

9-9-102. Religious preference — Removal 
of barriers to interethnic 
adoption — Preference to 



SECTION. 



relative caregivers for a 
child in foster care. 

9-9-103. Adoption home studies affidavit. 

9-9-104. Adoption information collection. 



Cross References. Child welfare 
agency licensing, § 9-28-401 et seq. 

Interstate compact on placement of chil- 
dren, § 9-29-201 et seq. 

Effective Dates. Acts 1997, No. 216, 
§ 5: Feb. 19, 1997. Emergency clause pro- 
vided: "It is found and determined by the 
General Assembly of the State of Arkan- 
sas that the United States Congress has 
amended the laws pertaining to adoption 
and out-of-home placement of children; 
that failure to amend State law to mirror 
those federal laws will jeopardize the fed- 
eral funding necessary for the State to 
accomplish adoptions and out-of-home 



placement; that this act provides for the 
necessary amendments to State law. 
Therefore an emergency is declared to 
exist and this act being immediately nec- 
essary for the preservation of the public 
peace, health and safety shall become ef- 
fective on the date of its approval by the 
Governor. If the bill is neither approved 
nor vetoed by the Governor, it shall be- 
come effective on the expiration of the 
period of time during which the Governor 
may veto the bill. If the bill is vetoed by 
the Governor and the veto is overridden, it 
shall become effective on the date the last 
house overrides the veto." 



9-9-101. Surrender of custody of minor by hospital or birthing 
center. 

(a) After a consent to adoption under § 9-9-208 or a relinquishment 
of parental rights under § 9-9-220 is executed with regard to a minor in 
the physical custody of a hospital or birthing center within the State of 
Arkansas, the biological mother of a minor child may authorize the 



33 ADOPTION 9-9-102 

release of the child from the hospital or birthing center to the petitioner 
for adoption, the guardian of the minor child, the child placement 
agency licensed under the Child Welfare Agency Licensing Act, § 9-28- 
401 et seq., the Division of Children and Family Services of the 
Department of Human Services, or the attorney acting on behalf of any 
of the foregoing entities. 

(b)(1) A hospital or birthing center release form under this section 
must: 

(A) Be executed in writing; 

(B) Be witnessed by two (2) credible adults; 

(C) Authorize the petitioner for adoption, the guardian of the 
minor child, the licensed child placement agency, the division, or the 
attorney acting on the behalf of any of the foregoing entities to obtain 
any medical treatment, including circumcision of a male child, 
reasonably necessary for the care of the minor and to authorize any 
physician or medical services provider to furnish additional services 
deemed reasonable and necessary; and 

(D) Be verified before a person authorized to take oaths. 

(2) If a hospital or birthing center surrenders custody of a minor 
child to the petitioner for adoption, the guardian of the minor child, a 
licensed child placement agency, the division, or the attorney acting on 
behalf of any of the foregoing entities, the hospital or birthing center 
releasing the minor shall not be liable to any person because of its acts 
if the hospital or birthing center has complied with this section. 

(c)(1) A hospital or birthing center shall comply with the terms of a 
release executed under this section without requiring a court order. 

(2) Once the hospital or birthing center release form described in 
subsection (b) of this section is presented to the hospital or birthing 
center, the hospital or birthing center shall discharge the minor child to 
the petitioner for adoption, the guardian of the minor child, a licensed 
child placement agency, the division, or the attorney acting on the 
behalf of any of the foregoing entities after the hospital or birthing 
center is presented photo identification of the receiving party. 

History. Acts 1971, No. 169, § 1; A.S.A. 
1947, § 56-125; Acts 1987, No. 1060, § 8; 
2001, No. 1737, § 1. 

RESEARCH REFERENCES 

Ark. L. Rev. Morrison & Sievers, Adop- Legislation, 2001 Arkansas General As- 
tion Law in Arkansas, 53 Ark. L. Rev. 1. sembly, Family Law, 24 U. Ark. Little 
U. Ark. Little Rock L. Rev. Survey of Rock L. Rev. 483. 

9-9-102. Religious preference — Removal of barriers to inter- 
ethnic adoption — Preference to relative caregivers 
for a child in foster care. 

(a) In all custodial placements by the Department of Human Ser- 
vices in foster care or investigations conducted by the department 



9-9-103 FAMILY LAW 34 

pursuant to court order under § 9-9-212, preferential consideration 
shall be given to an adult relative over a nonrelated caregiver, provided 
that the relative caregiver meets all relevant child protection standards 
and it is in the child's best interest to be placed with the relative 
caregiver. 

(b) The department and any other agency or entity that receives 
federal assistance and is involved in adoption or foster care placement 
shall not discriminate on the basis of the race, color, or national origin 
of the adoptive or foster parent or the child involved nor delay the 
placement of a child on the basis of race, color, or national origin of the 
adoptive or foster parents. 

(c) If the child's genetic parent or parents express a preference for 
placing the child in a foster home or an adoptive home of the same or a 
similar religious background to that of the genetic parent or parents, 
the court shall place the child with a family that meets the genetic 
parent's religious preference, or if a family is not available, to a family 
of a different religious background that is knowledgeable and appre- 
ciative of the child's religious background. 

(d) The court shall not deny a petition for adoption on the basis of 
race, color, or national origin of the adoptive parent or the child 
involved. 

History. Acts 1987, No. 857, § 1; 1995, 
No. 956, § 1; 1997, No. 216, § 1. 

RESEARCH REFERENCES 

Ark. L. Rev. Chiles, A Hand to Rock the the Arkansas General Assembly, 49 Ark. 
Cradle: Transracial Adoption, the Multi- L. Rev. 501. 
ethnic Placement Act, and a Proposal for 

9-9-103. Adoption home studies affidavit. 

(a) Upon the request of any interested party, agency, or the court, the 
petitioner in any adoption proceeding shall file with the court an 
affidavit stating the number of adoption home studies conducted on the 
petitioner's home prior to the filing of the petition. 

(b) A copy of each adoption home study performed shall be attached 
to the affidavit. 

History. Acts 1993, No. 598, § 1. 

9-9-104. Adoption information collection. 

(a) The General Assembly finds that: 

(1) There is a need for more information on adoptions that occur in 
Arkansas; 

(2) No governmental agency has the responsibility for gathering 
information on Arkansas adoptions; and 



35 ADOPTION 9-9-104 

(3) Without adequate data, the General Assembly cannot make 
informed decisions regarding changes that may need to be made to 
adoption laws. 

(b) The Office of Chief Counsel of the Department of Human Services 
shall prepare an adoption information sheet and shall distribute the 
information sheet to each of the circuit clerks in the state for distribu- 
tion to each petitioner seeking to file an adoption pleading in the state. 

(c) Before the entry of an interlocutory or final decree of adoption, the 
petitioner shall complete the adoption information sheet and return it 
to the clerk. 

(d) The clerk shall mail the completed form to the Office of Chief 
Counsel of the Department of Human Services. 

(e) The adoption information sheet shall include without limitation: 

(1) The age of the minor to be adopted; 

(2) The state in which the minor was born; 

(3) The state in which the minor resided before the adoption; 

(4) The state of residence of the birth mother; 

(5) The age of each adoptive parent; 

(6) The state in which each adoptive parent resides; 

(7) Whether the adoption placement was made by a licensed Arkan- 
sas adoption agency and, if so, the name of the agency; 

(8) Whether the adoption placement was made by: 

(A) A private physician; 

(B) A private attorney; or 

(C) An out-of-state entity or individual; 

(9) Whether the adoptive parents are married or single; 

(10) Whether the adoptive parent is a stepparent or second-parent 
adoptive parent; 

(11) Whether the adoptive parent is a family member of the minor 
child; and 

(12) An approximate amount for costs paid by the petitioner in the 
adoption. 

(f) Personally identifiable information regarding the child to be 
adopted or regarding an adoptive parent shall not be requested or 
gathered on the adoption information sheet. 

History. Acts 2009, No. 1399, § 1. 

Subchapter 2 — Revised Uniform Adoption Act 



SECTION. 




SECTION. 




9-9-201. 


Short title. 




for relinquishing minor for 


9-9-202. 


Definitions. 




adoption. 


9-9-203. 


Who may be adopted. 


9-9-207. 


Persons as to whom consent not 


9-9-204. 


Who may adopt. 




required. 


9-9-205. 


Jurisdiction — Venue — Incon- 


9-9-208. 


How consent is executed. 




venient forum — Disclo- 


9-9-209. 


Withdrawal of consent. 




sure of name. 


9-9-210. 


Petition for adoption. 


9-9-206. 


Persons required to consent to 


9-9-211. 


Report of petitioner's expendi- 




adoption — Consideration 




tures. 



FAMILY LAW 



36 



SECTION. 

9-9-212. Hearing on petition — Require- 
ments. 

9-9-213. Required residence of minor. 

9-9-214. Appearance — Continuance — 
Disposition of petition. 

9-9-215. Effect of decree of adoption. 

9-9-216. Appeal from and validation of 
adoption decree. 

9-9-217. Confidentiality of hearings and 
records. 

9-9-218. Recognition of foreign decrees af- 
fecting adoption. 



SECTION. 

9-9-219. Application for new birth record. 

9-9-220. Relinquishment and termina- 
tion of parent and child 
relationship. 

9-9-221. Uniformity of interpretation. 

9-9-222. Repeal and effective date. 

9-9-223. Termination of rights of nonpa- 
rental relatives. 

9-9-224. Child born to unmarried mother. 



A.C.R.C. Notes. Ark. Const., Amend. 
80, adopted by voter referendum and ef- 
fective July 1, 2001, abolished chancery 
courts and established circuit courts as 
the trial courts of original jurisdiction. 
The jurisdiction of the circuit courts now 
includes "all matters previously cogni- 
zable by Circuit, Chancery, Probate and 
Juvenile Courts.... " 

Publisher's Notes. For comments re- 
garding the Uniform Adoption Act, see 
Commentaries Volume B. 

Cross References. Grandparent's 
visitation rights, § 9-13-103. 

Effective Dates. Acts 1979, No. 599, 
§ 6: Mar. 28, 1979. Emergency clause pro- 
vided: "It is hereby found and determined 
by the General Assembly that technical 
and clerical errors were made in the 1977 
Uniform Adoption Act and that it is imme- 
diately necessary to remedy such errors. 
Therefore, an emergency is hereby de- 
clared to exist and this Act being immedi- 
ately necessary for the preservation of the 
public peace, health and safety shall be in 
full force and effect from and after its 
passage and approval." 

Acts 1986 (2nd Ex. Sess.), No. 23, § 5: 
May 19, 1986. Emergency clause pro- 
vided: "It is hereby found and determined 
by the General Assembly of the State of 
Arkansas that the repeal of Section 17 of 
Act 735 of 1977, formerly compiled as 
Arkansas Statute 56-217, was an error 
and that this Act is immediately neces- 
sary to insure that adoption proceedings 
and adoption records are confidential. 
Therefore, an emergency is hereby de- 
clared to exist and this Act being immedi- 
ately necessary for the preservation of the 
public peace, health and safety shall be in 



full force and effect from and after its 
passage and approval." 

Acts 1995, No. 1284, § 6: became law 
without Governor's signature. Noted Apr. 
14, 1995. Emergency clause provided: "It 
is hereby found and determined by the 
General Assembly that the provisions of 
this act are of critical importance to adop- 
tion proceedings in the state of Arkansas. 
Therefore, an emergency is hereby de- 
clared to exist and this act being neces- 
sary for the immediate preservation of the 
public peace, health and safety shall be in 
full force and effect from and after its 
passage and approval." 

Acts 1997, No. 1106, § 5: Apr. 3, 1997. 
Emergency clause provided: "It is found 
and determined by the General Assembly 
of the State of Arkansas that national 
fingerprint-based criminal record checks 
are not necessary if a prospective adoptive 
parent has resided in their state of resi- 
dence for six years. Additional national 
fingerprint-based criminal record checks 
are not needed with international adop- 
tions as they are already part of INS 
regulations. Therefore an emergency is 
declared to exist and this act being imme- 
diately necessary for the preservation of 
the public peace, health and safety shall 
become effective on the date of its ap- 
proval by the Governor. If the bill is nei- 
ther approved nor vetoed by the Governor, 
it shall become effective on the expiration 
of the period of time during which the 
Governor may veto the bill. If the bill is 
vetoed by the Governor and the veto is 
overridden, it shall become effective on 
the date the last house overrides the veto." 

Acts 1997, No. 1227, § 19: Apr. 7, 1997. 
Emergency clause provided: "It is found 



37 



ADOPTION 



and determined by the General Assembly 
of the State of Arkansas that there is an 
important public interest in providing 
quality representation to juveniles and 
parents in dependency-neglect proceed- 
ings, pursuant to Ark. Code Ann. 9-27- 
316. It is further determined that children 
are the state's most treasured future re- 
source and recent studies indicate that 
children and their parents have not al- 
ways received quality representation and 
sometimes have gone without representa- 
tion in dependency-neglect proceedings in 
the past because the counties of Arkansas 
have been unable to provide adequate 
representation due to lack of funding and 
uniform application of the law. To insure 
the best interests of Arkansas' children in 
achieving a safe and permanent home, to 
comply with federal law mandating ap- 
pointment of guardians ad litem in depen- 
dency-neglect cases, and to prevent the 
loss of federal funding, a statewide system 
for quality dependency-neglect represen- 
tation must be established. Therefore an 
emergency is declared to exist and this act 
being immediately necessary for the pres- 
ervation of the public peace, health and 
safety shall become effective on the date of 
its approval by the Governor. If the bill is 
neither approved nor vetoed by the Gov- 
ernor, it shall become effective on the 
expiration of the period of time during 
which the Governor may veto the bill. If 
the bill is vetoed by the Governor and the 
veto is overridden, it shall become effec- 
tive on the date the last house overrides 
the veto." 

Acts 2003, No. 650, § 9: Mar. 25, 2003. 
Emergency clause provided: "It is found 
and determined by the General Assembly 
of the State of Arkansas that federal law 
only allows the Federal Bureau of Inves- 



tigation to release criminal history 
records to certain entities, which does not 
include private entities as currently per- 
mitted under state law. The Department 
of Arkansas State Police entered into an 
agreement with the Federal Bureau of 
Investigation regarding federal finger- 
print-based criminal record checks, which 
permits disclosure only as allowed by fed- 
eral law, with a grace period from the 
Federal Bureau of Investigation to correct 
state law no later than May 1, 2003. 
Therefore, an emergency is declared to 
exist and this act being immediately nec- 
essary for the preservation of the public 
peace, health and safety shall become ef- 
fective on: (1) The date of its approval by 
the Governor; (2) If the bill is neither 
approved nor vetoed by the Governor, it 
shall become effective on the expiration of 
the period of time during which the Gov- 
ernor may veto the bill; or (3) If the bill is 
vetoed by the Governor and the veto is 
overridden, it shall become effective on 
the date the last house overrides the veto." 
Acts 2009, No. 230, § 3: Feb. 25, 2009: 
Emergency clause provided: "It is found 
and determined by the General Assembly 
of the State of Arkansas that it is in the 
best interest of a child to be determined to 
be legally free for adoption without undue 
delay. Therefore, an emergency is declared 
to exist and this act being immediately 
necessary for the preservation of the pub- 
lic peace, health, and safety shall become 
effective on: (1) The date of its approval by 
the Governor; (2) If the bill is neither 
approved nor vetoed by the Governor, the 
expiration of the period of time during 
which the Governor may veto the bill; or 
(3) If the bill is vetoed by the Governor 
and the veto is overridden, the date the 
last house overrides the veto." 



RESEARCH REFERENCES 



Ark. L. Notes. Sampson, Coats, & 
Barger, Arkansas' Putative Father Regis- 
try and Related Adoption Code Provisions: 
Inadequate Protection for Thwarted Puta- 
tive Fathers, 1997 Ark. L. Notes 49. 

Ark. L. Rev. Brummer and Looney, 
Grandparent Rights in Custody, Adoption, 
and Visitation Cases, 39 Ark. L. Rev. 259. 

Case Note, Cox v. Whitten: Limiting the 
Inheritance Rights of Adopted Adults, etc., 
40 Ark. L. Rev. 627. 



Leflar, Conflict of Laws: Arkansas, 
1983-87, 41 Ark. L. Rev. 63. 

Note, Strict Construction, Jurisdic- 
tional Requirements and the Arkansas 
Adoption Code: Martin v. Martin and a 
Missed Chance for Clarity, 49 Ark. L. Rev. 
123. 

U. Ark. Little Rock L.J. Survey of 
Arkansas Law, Family Law, 1 U. Ark. 
Little Rock L.J. 200. 

Derden, Note: Family Law — Adoption 



FAMILY LAW 



38 



— Revised Uniform Adoption Act, 2 U. 
Ark. Little Rock L.J. 135. 

Brantley and Effland, Inheritance, The 
Share of the Surviving Spouse, and Wills: 
Arkansas Law and the Uniform Probate 
Code Compared, 3 U. Ark. Little Rock L.J. 
361. 

Arkansas Law Survey, Waddell, Family 
Law, 7 U. Ark. Little Rock L.J. 229. 

Arkansas Law Survey, Morgan, Family 
Law, 8 U. Ark. Little Rock L.J. 169. 



Legislative Survey, Family Law, 8 U. 
Ark. Little Rock L.J. 577. 

Arkansas Law Survey, Irving, Family 
Law, 9 U. Ark. Little Rock L.J. 173. 

Survey— Family Law, 14 U. Ark. Little 
Rock L.J. 799. 

Fifteenth Annual Survey of Arkansas 
Law, 15 U. Ark. Little Rock L.J. 427. 



CASE NOTES 



Analysis 

In General. 
Construction. 
Agreements to Adopt. 
Grandparents. 
Joinder of State Agency. 
Rehabilitative Services. 
Residency Requirement. 

In General. 

Law in effect at time of adoption gov- 
erns in determining validity of adoption. 
Dean v. Brown, 216 Ark. 761, 227 S.W2d 
623 (1950). 

Construction. 

Statutory provisions involving the 
adoption of minors are strictly construed 
and applied. Dale v. Franklin, 22 Ark. 
App. 98, 733 S.W2d 747 (1987). 

Agreements to Adopt. 

An oral agreement to adopt a child did 
not prevent the person making the agree- 
ment from disposing by will of all his 
property to other persons than the child 
agreed to be adopted. Mine tree v. Min- 
etree, 181 Ark. Ill, 26 S.W2d 101 (1930) 
(decision under prior law). 

To prove a contract to adopt a person, 
the burden of proof rests with the person 
claiming the benefit of an alleged contract 
for adoption, to establish it by clear, co- 
gent, and convincing evidence. Thomas v. 
Costello, 226 Ark. 669, 292 S.W.2d 267 
(1956) (decision under prior law). 

Grandparents. 

Where grandparents intervened in an 
adoption proceeding to show the best in- 
terests of their grandchildren, but did not 
seek to adopt them, it could not be argued 



that the adoption statutes deprived them 
of their rights to the grandchildren with- 
out showing a compelling state interest or 
deprived them of due process. Cox v. Stay- 
ton, 273 Ark. 298, 619 S.W.2d 617 (1981). 

Joinder of State Agency. 

There is nothing in ARCP 19 or this 
subchapter which compels the joinder of 
the Division of Social Services (abolished 
— see § 25-10-101 et seq.) in all adoption 
proceedings. Cox v. Stayton, 273 Ark. 298, 
619 S.W2d 617 (1981). 

Rehabilitative Services. 

Any claim of a right to receive rehabili- 
tative services must be made in the juve- 
nile court dependency-neglect proceedings 
and not later in the probate court on a 
petition for adoption of the neglected chil- 
dren, since this subchapter, makes no pro- 
vision for rehabilitative services. Cox v. 
Stayton, 273 Ark. 298, 619 S.W.2d 617 
(1981). 

Residency Requirement. 

Probate courts are not empowered to 
grant an adoption when neither the adopt- 
ing parents nor the child sought to be 
adopted are residents of Arkansas. In re 
Pollock, 293 Ark. 195, 736 S.W2d 6 (1987). 

Cited: Poe v. Case, 263 Ark. 488, 565 
S.W.2d 612 (1978); Watkins v. Dudgeon, 
270 Ark. 516, 606 S.W2d 78 (Ct. App. 
1980); Temple v. Tucker, 277 Ark. 81, 639 
S.W.2d 357 (1982); Webb v. Harvell, 563 F. 
Supp. 172 (WD. Ark. 1983); Woodson v. 
Kilcrease, 7 Ark. App. 252, 648 S.W2d 72 
(1983); In re Proposed Local Rules, 284 
Ark. 133, 682 S.W2d 452 (1984); Sum- 
mers v. Mylan, 287 Ark. 150, 697 S.W2d 
91 (1985). 



39 ADOPTION 9-9-202 

9-9-201. Short title. 

This subchapter may be cited as the "Revised Uniform Adoption Act". 

History. Acts 1977, No. 735, § 1; A.S.A. 
1947, § 56-201. 

RESEARCH REFERENCES 

Ark. L. Rev. Carroll, Uniform Laws in Morrison & Sievers, Adoption Law in 
Arkansas, 52 Ark. L. Rev. 313. Arkansas, 53 Ark. L. Rev. 1. 

CASE NOTES 

Cited: In re Parsons, 302 Ark. 427, 791 Beene, 327 Ark. 401, 938 S.W.2d 840 
S.W.2d 681 (1990); In re J.L.T., 31 Ark. (1997). 
App. 85, 788 S.W.2d 494 (1990); Sides v. 

9-9-202. Definitions. 

As used in this subchapter, unless the context otherwise requires: 

(1) "Child" means a son or daughter, whether by birth or by adoption; 

(2) "Court" means all probate divisions of circuit courts in this state, 
or the juvenile divisions of circuit courts when exercising jurisdiction 
over adoption cases pursuant to §§ 9-27-301 — 9-27-345 and, when the 
context requires, means the court of any other state empowered to 
grant petitions for adoption; 

(3) "Minor" means an individual under the age of eighteen (18) years; 

(4) "Adult" means any individual who is not a minor; 

(5) "Agency" means any person certified, licensed, or otherwise 
specially empowered by law or rule to place minors for adoption; 

(6) "Person" means an individual, corporation, government or gov- 
ernmental subdivision or agency, business trust, estate, trust, partner- 
ship or association, or any other legal entity; 

(7) "Abandonment" means the failure of the parent to provide 
reasonable support and to maintain regular contact with the child 
through statement or contact, when the failure is accompanied by an 
intention on the part of the parent to permit the condition to continue 
for an indefinite period in the future, and failure to support or maintain 
regular contact with the child without just cause for a period of one (1) 
year shall constitute a rebuttable presumption of abandonment; 

(8) "Neglect" means the failure or refusal, including acts or omis- 
sions, of a person legally responsible for the care and maintenance of a 
child: 

(a) To prevent the abuse of the child when the person legally 
responsible knows or has reasonable cause to know the child is or has 
been abused; or 

(b) To provide the necessary food, clothing, shelter, and education 
required by law, or medical treatment necessary for the child's 
well-being, which causes or threatens to cause the significant impair- 
ment of the child's physical, mental, or emotional health, except when 



9-9-203 FAMILY LAW 40 

the failure or refusal is caused primarily by the financial inability of 
the person legally responsible and no services for relief have been 
offered or rejected, or when the child is being furnished with 
treatment by spiritual means alone through prayer, in accordance 
with the tenets and practices of a recognized religious denomination 
by a duly accredited practitioner thereof in lieu of medical treatment; 

(9) "Refusal to consent" means the unreasonable refusal to consent 
by a parent not having custody of a child to the termination of parental 
rights contrary to the best interest of the child; 

(10) "Abuse" means any injury, sexual abuse, or sexual exploitation 
inflicted by a person upon a child other than by accidental means, or an 
injury which is at variance with the history given of it. 

History. Acts 1977, No. 735, § 2; 1985, courts and established circuit courts as 

No. 879, § 1; A.S.A. 1947, § 56-202; Acts the trial courts of original jurisdiction. 

1993, No. 758, § 2. The jurisdiction of the circuit courts now 

A.C.R.C. Notes. Ark. Const., Amend, includes "all matters previously cogni- 

80, adopted by voter referendum and ef- zable by Circuit, Chancery, Probate and 

fective July 1, 2001, abolished chancery Juvenile Courts...." 

CASE NOTES 

Abandonment. one year, and therefore had abandoned 

Record supported the circuit court's her per § 9-9-202(7). Vick v. Cecil (In re 

holding that a natural father's consent to A.M.C.), 368 Ark. 369, 246 S.W.3d 426 

the adoption of his minor child was not (2007). 

required under § 9-9-207 because he had Cited: King v. Lybrand, 329 Ark. 163, 

failed significantly, without justifiable 946 S.W.2d 946 (1997); In re SCD, 358 

cause, to support the child for a period of Ark. 51, 186 S.W.3d 225 (2004). 

9-9-203. Who may be adopted. 

Any individual may be adopted. 

History. Acts 1977, No. 735, § 3; A.S.A. 
1947, § 56-203. 

9-9-204. Who may adopt. 

The following individuals may adopt: 

(1) A husband and wife together although one (1) or both are minors; 

(2) An unmarried adult; 

(3) The unmarried father or mother of the individual to be adopted; 

(4) A married individual without the other spouse joining as a 
petitioner, if the individual to be adopted is not his or her spouse; and 
if: 

(i) The other spouse is a parent of the individual to be adopted and 

consents to the adoption; 

(ii) The petitioner and the other spouse are legally separated; or 
(iii) The failure of the other spouse to join in the petition or to 

consent to the adoption is excused by the court by reason of prolonged 



41 



ADOPTION 



9-9-205 



unexplained absence, unavailability, incapacity, or circumstances 
constituting an unreasonable withholding of consent. 

History. Acts 1977, No. 735, § 4; 1979, 
No. 599, § 1; A.S.A. 1947, § 56-204. 

CASE NOTES 



Analysis 

Adoption by Unmarried Father. 
Adoption by Unmarried Mother. 
Standing to Adopt. 

Adoption by Unmarried Father. 

Trial court erred in its interpretation of 
this section because a child's biological 
father could adopt the child, despite the 
fact that the father was unmarried. Also, 
the trial court's policy concern that the 
adoption would relieve the mother, who 
had consented to the adoption, of her 
obligation to financially support the child 
was a matter that was more appropriately 
addressed by the legislature. King v. 
Ochoa, 373 Ark. 600, 285 S.W.3d 602 
(2008). 

Adoption by Unmarried Mother. 

Circuit court did not err in denying the 
adoption petition, because it was the 
mother's burden to present credible evi- 
dence to convince the circuit judge that 
adoption was in the best interest of the 
child, and considering the circuit court's 
determination that the effect of § 9-9-2 15 
was speculative and that the mother's 
allegations against the father could be 



afforded no weight, she failed to meet this 
burden. There was no corroborating testi- 
mony or evidence as to the mother's alle- 
gations regarding the father's use of alco- 
hol and drugs or the father's abuse of his 
children, other than what the mother told 
her mother. In re Adoption of M.K.C., — 
Ark. — , — S.W.3d — , 2009 Ark. LEXIS 
257 (Mar. 5, 2009). 

Standing to Adopt. 

Section 9-9-2 10(a)(3) provides that a 
petition for adoption shall state "the date 
the petitioner acquired custody of the mi- 
nor and of placement of the minor and the 
name of the person placing the minor; and 
a statement as to how petitioner acquired 
custody of the minor." That language, hav- 
ing to do with the contents of the petition, 
does not mean that a person who does not 
have custody and with whom the child has 
not been "placed" has no standing; stand- 
ing to adopt is conferred by this section, 
and this section does not exclude persons 
who have served as foster parents of the 
minor to be adopted. Patterson v. Robbins, 
295 Ark. 511, 749 S.W.2d 330 (1988). 

Cited: Irvan v. Kizer, 286 Ark. 105, 689 
S.W.2d 548 (1985); In re Perkins/Pollnow, 
300 Ark. 390, 779 S.W.2d 531 (1989). 



9-9-205. Jurisdiction — Venue — Inconvenient forum — Disclo- 
sure of name. 

(a) Jurisdiction of adoption of minors: 

(1) The state shall possess jurisdiction over the adoption of a minor 
if the person seeking to adopt the child, or the child, is a resident of this 
state. 

(2) For purposes of this subchapter: 

(A) A child under the age of six (6) months shall be considered a 
resident of this state if the: 

(i) Child's birth mother resided in Arkansas for more than four (4) 
months immediately preceding the birth of the child; 

(ii) Child was born in this state or in any border city that adjoins 
the Arkansas state line or is separated only by a navigable river from 
an Arkansas city that adjoins the Arkansas state line; and 



9-9-205 FAMILY LAW 42 

(iii) Child remains in this state until the interlocutory decree has 
been entered, or in the case of a nonresident adoptive family, upon the 
receipt of approval pursuant to the Interstate Compact on the 
Placement of Children, § 9-29-201 et seq., the child and the prospec- 
tive adoptive parents may go back to their state of residence and 
subsequently may return to Arkansas for a hearing on the petition for 
adoption; 

(B) A child over the age of six (6) months shall be considered a 
resident of this state if the child: 

(i) Has resided in this state for a period of six (6) months; 
(ii) Currently resides in Arkansas; and 

(iii) Is present in this state at the time the petition for adoption is 
filed and heard by a court having appropriate jurisdiction; and 

(C) A person seeking to adopt is a resident of this state if the 
person: 

(i) Occupies a dwelling within the state; 

(ii) Has a present intent to remain within the state for a period of 
time; and 

(iii) Manifests the genuineness of that intent by establishing an 
ongoing physical presence within the state together with indications 
that the person's presence within the state is something other than 
merely transitory in nature. 

(3)(A) If the juvenile is the subject matter of an open case filed under 
the Arkansas Juvenile Code of 1989, § 9-27-301 et seq., the adoption 
petition shall be filed in that case. 

(B) The circuit court shall retain jurisdiction to issue orders of 
adoption, interlocutory or final, when a juvenile is placed outside the 
State of Arkansas. 

(b) Jurisdiction of adoption of adults: Physical presence of the 
petitioner or petitioners or the individual to be adopted shall be 
sufficient to confer subject matter jurisdiction. 

(c) Venue: 

(1) Proceedings for adoption must be brought in the county in which, 
at the time of filing or granting the petition, the petitioner or petition- 
ers, or the individual to be adopted resides or is in military service or in 
which the agency having the care, custody, or control of the minor is 
located; 

(2) If the court finds in the interest of substantial justice that the 
matter should be heard in another forum, the court may transfer, stay, 
or dismiss the proceedings in whole or in part on any conditions that are 
just. 

(d) The caption of a petition for adoption shall be styled substantially 
"In the matter of the Adoption..." The person to be adopted shall be 
designated in the caption under the name by which he or she is to be 
known if the petition is granted. 

(e) If the child is placed for adoption, any name by which the child 
was previously known may be disclosed in the petition, the notice of 
hearing, or in the decree of adoption. 



43 



ADOPTION 



9-9-205 



(f) In the event the child dies during the time that the child is placed 
in the home of an adoptive parent or parents for the purpose of 
adoption, the court has the authority to enter a final decree of adoption 
after the child's death upon the request of the adoptive parent. 



History. Acts 1977, No. 735, § 5; A.S.A. 
1947, § 56-205; Acts 1991, No. 658, § 1; 
2001, No. 383, § 1; 2001, No. 1029, § 1; 
2003, No. 650, §§ 1, 8; 2007, No. 539, 
§§ 1, 2. 

Publisher's Notes. Acts 1991, No. 658, 
§ 2 provided that the 1991 amendment to 
this section shall not apply retrospectively 



but only to adoption petitions filed after 
July 15, 1991. 

Amendments. The 2007 amendment, 
in (e), deleted "by an agency" following 
"for adoption" and substituted "may" for 
"shall not"; and added (f). 

Cross References. Jurisdiction of 
courts, § 28-65-107. 



RESEARCH REFERENCES 



Ark. L. Rev. Case Note, In re Adoption 
of Pollock: Arkansas Probate Court Juris- 
diction — A Question of Policy, 41 Ark. L. 
Rev. 677. 

U. Ark. Little Rock L.J. Survey — 
Family Law, 11 U. Ark. Little Rock L.J. 
215. 



U. Ark. Little Rock L. Rev. Survey of 
Legislation, 2003 Arkansas General As- 
sembly, Family Law, Uniform Adoption 
Act, 26 U. Ark. Little Rock L. Rev. 408. 



CASE NOTES 



Analysis 

Jurisdiction. 
Residence. 

Jurisdiction. 

The General Assembly, in enacting sub- 
section (a) of this section, has assured this 
state has a genuine interest or contact 
with at least one of the parties (adoptive 
parents, adopted child, or local agency 
that has care and control of the child) 
involved before an adoption matter is filed 
or granted within its borders. Restricting 
the state's jurisdiction to such instances, 
the General Assembly has placed our 
courts in a position to better ensure that 
the adopted child's best interests are 
achieved. In re Pollock, 293 Ark. 195, 736 
S.W.2d 6 (1987). 

Failure to comply strictly with the 
Adoption Code denies the probate court 
jurisdiction, and unless all jurisdictional 
requirements appear in the record, the 
resulting decree will be void on collateral 
attack. Swaffar v. Swaffar, 309 Ark. 73, 
827 S.W.2d 140 (1992). 

Granting of mother's, brother's, and 
wife's petition for adoption was inappro- 
priate as Arkansas did not have jurisdic- 
tion; the brother and his wife were not 



residents of Arkansas and the child was 
not a resident of the state, only the child's 
guardian was. Roberts v. Westover, 368 
Ark. 288, 245 S.W.3d 119 (2006). 

Residence. 

The jurisdiction of the probate court to 
grant a petition for the adoption of an 
infant did not depend on evidence that the 
residence of the father was unknown nor 
on the recital thereof in the record. Taylor 
v. Collins, 172 Ark. 541, 289 S.W. 466 
(1927) (decision under prior law). 

Probate court, which had jurisdiction to 
enter original order of adoption, had a 
right to correct the order originally made 
so as to show jurisdictional fact of resi- 
dence. Newell v. Black, 201 Ark. 937, 147 
S.W.2d 991 (1941) (decision under prior 
law). 

Adoption order was fatally defective 
where neither the petition nor the order 
recited that the prospective adoptive par- 
ent nor the minors sought to be adopted 
were residents of the county. Ozment v. 
Mann, 235 Ark. 901, 363 S.W.2d 129 
(1962) (decision under prior law). 

This section poses no permanent resi- 
dency or domicile requirement. In re 
Adoption of Samant, 333 Ark. 471, 970 
S.W.2d 249 (1998). 



9-9-206 FAMILY LAW 44 

9-9-206. Persons required to consent to adoption — Consider- 
ation for relinquishing minor for adoption. 

(a) Unless consent is not required under § 9-9-207, a petition to 
adopt a minor may be granted only if written consent to a particular 
adoption has been executed by: 

(1) The mother of the minor; 

(2) The father of the minor if the father was married to the mother at 
the time the minor was conceived or at any time thereafter, the minor 
is his child by adoption, he has physical custody of the minor at the time 
the petition is filed, he has a written order granting him legal custody 
of the minor at the time the petition for adoption is filed, a court has 
adjudicated him to be the legal father prior to the time the petition for 
adoption is filed, or he proves a significant custodial, personal, or 
financial relationship existed with the minor before the petition for 
adoption is filed; 

(3) Any person lawfully entitled to custody of the minor or empow- 
ered to consent; 

(4) The court having jurisdiction to determine custody of the minor, 
if the legal guardian or custodian of the person of the minor is not 
empowered to consent to the adoption; 

(5) The minor, if more than ten (10) years of age, unless the court in 
the best interest of the minor dispenses with the minor's consent; and 

(6) The spouse of the minor to be adopted. 

(b) A petition to adopt an adult may be granted only if written 
consent to adoption has been executed by the adult and the adult's 
spouse. 

(c) Under no circumstances may a parent or guardian of a minor 
receive a fee, compensation, or any other thing of value as a consider- 
ation for the relinquishment of a minor for adoption. However, inciden- 
tal costs for prenatal, delivery, and postnatal care may be assessed, 
including reasonable housing costs, food, clothing, general mainte- 
nance, and medical expenses, if they are reimbursements for expenses 
incurred or fees for services rendered. Any parent or guardian who 
unlawfully accepts compensation or any other thing of value as a 
consideration for the relinquishment of a minor shall be guilty of a 
Class C felony. 

History. Acts 1977, No. 735, § 6; 1979, ing to the laws of the place in which the 

No. 599, § 2; 1985, No. 467, § 1; A.S.A. adoption proceeding is brought" in (a)(2). 

1947, § 56-206; Acts 2005, No. 437, § 1; The 2007 amendment, in (a)(2), in- 

2007, No. 539, § 3. serted "physical" and "a court has adjudi- 

Amendments. The 2005 amendment cate d him to be the legal father prior to 

substituted "he has a written order ... the time the petition for adoption is filed." 
petition for adoption is filed" for "or he has 
otherwise legitimated the minor accord- 



45 



ADOPTION 



9-9-206 



RESEARCH REFERENCES 



Ark. L. Rev. Recent Developments, Do- 
mestic Relations — Adoption, 57 Ark. L. 
Rev. 697. 

Note, The Confusion and Clarification 
of Arkansas's Adoption Consent Law: In re 
the Adoption of SCD, a Minor, and the 
Arkansas General Assembly's Response, 
58 Ark. L. Rev. 735. 

U. Ark. Little Rock L.J. Shively, Sur- 
vey of Family Law, 3 U. Ark. Little Rock 
L.J. 223. 



Survey — Family Law, 10 U. Ark. Little 
Rock L.J. 207. 

Survey — Family Law, 11 U. Ark. Little 
Rock L.J. 215. 

U. Ark. Little Rock L. Rev. Note: 
Family Law-Putative Fathers and the 
Presumption of Legitimacy-Adams and 
the Forbidden Fruit: Clashes Between the 
Presumption of Legitimacy and the Rights 
of Putative Fathers in Arkansas, 25 U. 
Ark. Little Rock L. Rev. 369. 



CASE NOTES 



Analysis 

Constitutionality. 

In General. 

Construction. 

Application. 

Grandparents. 

Minors. 

Parents. 

— In General. 

—Father. 

— Mother. 

Refusal to Consent. 

Validity of Consent. 

Constitutionality. 

A putative father had no standing to 
question the constitutionality of this sec- 
tion, since it was not applied to him in a 
discriminatory manner. Wineman v. 
Brewer, 280 Ark. 527, 660 S.W.2d 655 
(1983). 

In General. 

Consent can be given either by (1) any 
person lawfully entitled to custody of the 
minor or (2) any person lawfully empow- 
ered to consent to his adoption; that per- 
son clearly need not be both lawfully en- 
titled to custody and lawfully empowered 
to consent. Pender v. McKee, 266 Ark. 18, 
582 S.W.2d 929 (1979). 

Trial court dismissed an adoption peti- 
tion filed by mother and prospective adop- 
tive parents due to a lack of consent by 
biological father after the trial court 
learned that the father had registered as 
the baby's father under the Arkansas Pu- 
tative Father Registry and had legiti- 
mated the baby as provided in subdivision 
(a)(2) of this section. Taylor v. Finck, 363 
Ark. 183, 211 S.W.3d 532 (2005). 



Construction. 

Statutory provisions involving the 
adoption of minors are strictly construed 
and applied. Bemis v. Hare, 19 Ark. App. 
198, 718 S.W.2d 481 (1986). 

Application. 

Subdivision (a)(5) of this section did not 
apply to termination of parental rights 
proceedings in dependency-neglect cases, 
because the statute required a minor of a 
certain age to consent to a particular 
adoption, and it was therefore utilized 
only where the circuit court was consider- 
ing a specific petition for the adoption of a 
child; a consent to adoption was not a 
necessary element of proof when a court 
was considering the termination of paren- 
tal rights. Childress v. Ark. Dep't of Hu- 
man Servs., — Ark. App. — , — S.W.3d — , 
2009 Ark. App. LEXIS 453 (Apr. 22, 2009). 

Grandparents. 

Custodial grandparents were not re- 
quired to consent to the adoption of the 
grandchildren, but were permitted to in- 
tervene in the adoption proceedings for 
the limited purpose of offering evidence on 
the best interests of the grandchildren. 
Quarles v. French, 272 Ark. 51, 611 S.W.2d 
757 (1981). 

Where the biological mother gave con- 
sent to the adoptive mother to adopt her 
daughter, consent was not required by the 
maternal grandparents before the adop- 
tion could proceed. Henry v. Buchanan, 
364 Ark. 485, 221 S.W.3d 346 (2006). 

Minors. 

A consenting minor's age may vary from 
ten up to 18 and the trial judge has the 
authority to attach more weight to the 



9-9-206 



FAMILY LAW 



46 



decision of a minor almost of full age than 
to that of a ten-year-old. Brown v. 
Meekins, 282 Ark. 186, 666 S.W.2d 710 
(1984). 

Consent of minor held unnecessary. 
Brown v. Meekins, 282 Ark. 186, 666 
S.W.2d 710 (1984). 

Absence of the consent of a minor whose 
consent is required is not a mere techni- 
cality, in that public policy clearly favors 
the consent of the person to be adopted, 
and the consent of the one to be adopted, 
as required by statute, must not be pre- 
sumed. Swaffar v. Swaffar, 309 Ark. 73, 
827 S.W.2d 140 (1992). 

Parents. 

Adoption decree in favor of the mother 
and the adoptive father was proper be- 
cause the biological father voluntarily, 
willfully, arbitrarily, and without ad- 
equate excuse failed to pay child support 
in excess of one year as set forth under 
§ 9-9-207(a)(2). Therefore, his consent to 
the adoption was unnecessary, per subdi- 
vision (a)(2) of this section. Powell v. Lane, 
375 Ark. 178, 289 S.W.3d 440 (2008). 

— In General. 

In order to grant an adoption contrary 
to the wishes of a natural parent, the 
conditions prescribed by statute must be 
clearly proven and the statute construed 
in favor of the natural parent. Irvan v. 
Kizer, 286 Ark. 105, 689 S.W.2d 548 
(1985). 

Consent of parent held necessary. Dale 
v. Franklin, 22 Ark. App. 98, 733 S.W.2d 
747 (1987). 

—Father. 

The courts may grant a petition for 
adoption regardless of the arbitrary dis- 
sent by a natural father. Watkins v. Dud- 
geon, 270 Ark. 516, 606 S.W.2d 78 (Ct. 
App. 1980). 

Unmarried father lacking any substan- 
tial relationship with his child is not en- 
titled to notice of the child's adoption 
proceeding under either the due process 
clause or the equal protection clause of 
U.S., Const. Amend. 14. In re S.J.B., 294 
Ark. 598, 745 S.W.2d 606 (1988); In re 
J.L.T., 31 Ark. App. 85, 788 S.W.2d 494 
(1990). 

As one means of protecting the right of 
natural parents with respect to the care, 
custody, management and companionship 
of their minor children a natural father 



who has legitimated a child has the privi- 
lege of consenting to an adoption, unless it 
is found that his consent is excused. In re 
B.A.B., 40 Ark. App. 86, 842 S.W.2d 68 
(1992). 

Although the natural father had filed an 
answer to a petition for adoption of the 
child by a stepfather and had declined to 
offer his consent to the adoption, where he 
did not appear at the hearing and had not 
himself pursued an appeal of the probate 
judge's decision granting the adoption, the 
natural father did not have standing on 
appeal to question the probate judge's 
decision on the issue. In re B.A.B., 40 Ark. 
App. 86, 842 S.W.2d 68 (1992). 

In vacating an adoption decree, the trial 
court never made a determination of 
whether the natural father qualified as a 
father whose consent was required under 
subdivision (a)(2) of this section, so the 
matter was remanded to the trial court for 
an analysis of the evidence on that issue; 
the father's consent was not required un- 
der (a)(3) of this section if it was deter- 
mined that it was not required under this 
section. Britton v. Gault, 80 Ark. App. 311, 
94 S.W.3d 926 (2003). 

Where a DNA test showed the putative 
father was the child's biological father but 
he did not timely register with the puta- 
tive-father registry, his consent to the 
adoption was not required because he had 
not "otherwise legitimated" the child; the 
father had taken no significant steps to 
prepare for having the baby with him if he 
was awarded custody. Escobedo v. Nickita, 
365 Ark. 548, 231 S.W3d 601 (2006). 

—Mother. 

Trial court without jurisdiction in adop- 
tion to proceed without the mother's con- 
sent. Roberts v. Swim, 268 Ark. 917, 597 
S.W2d 840 (Ct. App. 1980). 

Refusal to Consent. 

Before an order of adoption can be held 
binding against a nonconsenting parent, 
the court rendering it must have jurisdic- 
tion of both the subject matter and the 
person, and the record must show upon its 
face that the case is one where the court 
has authority to act. Hughnes v. Cain, 210 
Ark. 476, 196 S.W2d 758 (1946) (decision 
under prior law). 

Because father legitimated the child by 
filing with the putative father registry, 
initiating a petition to determine pater- 



47 ADOPTION 9-9-207 

nity, and taking other actions to establish Cox, 101 Ark. App. 388, 278 S.W.3d 110 

his parentage, the trial court correctly (2008). 

ruled that the father's consent was re- ,, ,.j., ~^ , 

j u r i.T- j i.- u Validity of Consent. 

quired before the adoption could occur; Congent found to be yalid Martin y 

because the father did not consent to the Fordj 224 Ark 993? 27? g w 2d 842 (19g5) 

adoption, the trial court correctly denied (decision under prior law) 

the adoptive parents' petition for adop- Substantial compliance with statutory 

tion. In re SCD, 358 Ark. 51, 186 S.W.3d requirements found for consent to adop- 

225 (2004). tion A & B v. C & D, 239 Ark. 406, 390 

Where the adoptive parent left the child s.W.2d 116 (1965), cert, denied, 382 U.S. 

who suffered from an incurable skin con- 92 6, 86 S. Ct. 314, 15 L. Ed. 2d 340 (1965) 

dition alone in a motor home unattended (decision under prior law). 

by an adult, the trial court did not err in Cited: Watkins v. Dudgeon, 270 Ark. 

finding that the guardian was not unrea- 516, 606 S.W.2d 78 (Ct. App. 1980); Tis- 

sonably withholding her consent to the dale v. Seavey, 286 Ark. 222, 691 S.W.2d 

adoption of the child under subdivision 144 (1985); In re Glover, 288 Ark. 59, 702 

(a)(3) of this section. The trial court fo- S.W.2d 12 (1986); Belcher v. Bowling, 22 

cused on the special medical needs of the Ark. App. 248, 738 S.W.2d 804 (1987); 

child, including her epidermolysis bullosa Manuel v. McCorkle, 24 Ark. App. 92, 749 

condition, seizures, and episodes of hold- S.W.2d 341 (1988); In re Reeves, 309 Ark. 

ing her breath and passing out. Tom v. 385, 831 S.W.2d 607 (1992). 

9-9-207. Persons as to whom consent not required. 

(a) Consent to adoption is not required of: 

(1) a parent who has deserted a child without affording means of 
identification or who has abandoned a child; 

(2) a parent of a child in the custody of another, if the parent for a 
period of at least one (1) year has failed significantly without justifiable 
cause (i) to communicate with the child or (ii) to provide for the care and 
support of the child as required by law or judicial decree; 

(3) the father of a minor if the father's consent is not required by 
§ 9-9-206(a)(2); 

(4) a parent who has relinquished his or her right to consent under 
§ 9-9-220; 

(5) a parent whose parental rights have been terminated by order of 
court under § 9-9-220 or § 9-27-341; 

(6) a parent judicially declared incompetent or mentally defective if 
the court dispenses with the parent's consent; 

(7) any parent of the individual to be adopted, if the individual is an 
adult; 

(8) any legal guardian or lawful custodian of the individual to be 
adopted, other than a parent, who has failed to respond in writing to a 
request for consent for a period of sixty (60) days or who, after 
examination of his or her written reasons for withholding consent, is 
found by the court to be withholding his or her consent unreasonably; 

(9) the spouse of the individual to be adopted, if the failure of the 
spouse to consent to the adoption is excused by the court by reason of 
prolonged unexplained absence, unavailability, incapacity, or circum- 
stances constituting an unreasonable withholding of consent; 

(10) a putative father of a minor who signed an acknowledgement of 
paternity but who failed to establish a significant custodial, personal, or 



9-9-207 



FAMILY LAW 



48 



financial relationship with the juvenile prior to the time the petition for 
adoption is filed; or 

(11) a putative father of a minor who is listed on the Putative Father 
Registry but who failed to establish a significant custodial, personal, or 
financial relationship with the juvenile prior to the time the petition for 
adoption is filed. 

(b) Except as provided in §§ 9-9-212 and 9-9-224, notice of a hearing 
on a petition for adoption need not be given to a person whose consent 
is not required or to a person whose consent or relinquishment has been 
filed with the petition. 



History. Acts 1977, No. 735, § 7; 1977 
(1st Ex. Sess.), No. 22, §§ 1, 2; A.S.A. 
1947, § 56-207; Acts 1989, No. 496, § 8; 
2003, No. 650, § 2; 2005, No. 437, § 2. 



Amendments. The 2005 amendment 
added (a)(10) and (a)(ll) and made related 
changes. 



RESEARCH REFERENCES 



Ark. L. Notes. Sampson, Coats, & 
Barger, Arkansas' Putative Father Regis- 
try and Related Adoption Code Provisions: 
Inadequate Protection for Thwarted Puta- 
tive Fathers, 1997 Ark. L. Notes 49. 

Ark. L. Rev. Note, The Confusion and 
Clarification of Arkansas's Adoption Con- 
sent Law: In re the Adoption of SCD, a 
Minor, and the Arkansas General Assem- 
bly's Response, 58 Ark. L. Rev. 735. 

U. Ark. Little Rock L.J. Shively, Sur- 



vey of Family Law, 3 U. Ark. Little Rock 
L.J. 223. 

Survey — Family Law, 10 U. Ark. Little 
Rock L.J. 207. 

Survey — Family Law, 11 U. Ark. Little 
Rock L.J. 215. 

U. Ark. Little Rock L. Rev. Survey of 
Legislation, 2003 Arkansas General As- 
sembly, Family Law, Uniform Adoption 
Act, 26 U. Ark. Little Rock L. Rev. 408. 



CASE NOTES 



Analysis 

Constitutionality. 

Construction. 

Abandonment. 

Best Interest of Child. 

Custody of Another. 

Evidence. 

Failure to Communicate or Support. 

— In General. 

— Sufficient Communication. 

— Support. 

— Time Period. 

Guardian. 

Notice. 

Proof. 

Unreasonable Withholding of Consent. 

Constitutionality. 

A putative father had no standing to 
question the constitutionality of this sec- 
tion, since it was not applied to him in a 
discriminatory manner. Wineman v. 



Brewer, 280 Ark. 527, 660 S.W.2d 655 
(1983). 

Construction. 

This section should be strictly construed 
and applied. Roberts v. Swim, 268 Ark. 
917, 597 S.W.2d 840 (Ct. App. 1980); Dod- 
son v. Donaldson, 10 Ark. App. 64, 661 
S.W.2d 425 (1983); Brown v. Johnson, 10 
Ark. App. 110, 661 S.W.2d 443 (1983); 
Bemis v. Hare, 19 Ark. App. 198, 718 
S.W.2d 481 (1986). 

Abandonment. 

Abandonment of child by father held 
not to have been established. Woodson v. 
Lee, 221 Ark. 517, 254 S.W2d 326 (1953); 
Walthall v. Hime, 236 Ark. 689, 368 
S.W2d 77 (1963) (preceding cases decided 
under prior law); Pender v. McKee, 266 
Ark. 18, 582 S.W2d 929 (1979). 

Father's indifference to his children's 
welfare was tantamount to voluntary 
abandonment, so that his consent was not 



49 



ADOPTION 



9-9-207 



needed to the children's adoption by his 
former wife's second husband. Zglesze- 
wski v. Zgleszewski, 260 Ark. 629, 542 
S.W.2d 765 (1976) (decision under prior 
law). 

Abandonment, in the sense of the adop- 
tion statutes, means conduct which 
evinces a settled purpose to forego all 
parental duties. Pender v. McKee, 266 
Ark. 18, 582 S.W.2d 929 (1979). 

Where the natural mother and her new 
husband proved by clear and convincing 
evidence that the natural father failed 
significantly and without justifiable cause 
to provide for the care and support of the 
child, the natural father's consent to the 
adoption was not required. Bemis v. Hare, 
19 Ark. App. 198, 718 S.W.2d 481 (1986). 

Where the father was not precluded 
from making his support payments, there 
was no evidence that the father was finan- 
cially unable to meet his obligation, and 
the record clearly reflected that the father 
voluntarily chose not to pay the support, 
the father's action in failing to pay sup- 
port was an arbitrary act without just 
cause or adequate excuse, whether or not 
the mother interfered with his ability to 
observe visitation with the child. Bemis v. 
Hare, 19 Ark. App. 198, 718 S.W2d 481 
(1986). 

Consent for adoption was not required 
where father's denial of paternity, when 
child support was sought in prior years, 
could be considered abandonment. King v. 
Lybrand, 329 Ark. 163, 946 S.W2d 946 
(1997). 

Record supported the circuit court's 
holding that the natural father's consent 
to the adoption of his minor child was not 
required under this section because he 
had failed significantly, without justifiable 
cause, to support the child for a period of 
one year, and therefore had abandoned 
her per subdivision (7) of this section. Vick 
v. Cecil (In re A.M.C.), 368 Ark. 369, 246 
S.W3d 426 (2007). 

Best Interest of Child. 

The fact that, under certain circum- 
stances, the father's consent is necessary, 
does not require that the adoption be 
granted. The court must find that the 
adoption is in the best interest of the 
child. McKee v. Bates, 10 Ark. App. 51, 661 
S.W2d 415 (1983); Shemley v. Monte- 
zuma, 12 Ark. App. 337, 676 S.W.2d 759 
(1984). 



The mere fact that a parent has for- 
feited his right to have his consent to an 
adoption required does not mean that the 
adoption must be granted. The court must 
further find from clear and convincing 
evidence that the adoption is in the best 
interest of the child. Waldrip v. Davis, 40 
Ark. App. 25, 842 S.W2d 49 (1992). 

Where the court's finding was that step- 
parent adoption was not in children's best 
interest, the adoption was properly de- 
nied. Waldrip v. Davis, 40 Ark. App. 25, 
842 S.W2d 49 (1992). 

A probate court may grant a petition for 
adoption if it determines at the conclusion 
of a hearing that the required consents 
have been obtained or excused and that 
the adoption is in the best interest of the 
child or individual to be adopted. In re 
B.A.B., 40 Ark. App. 86, 842 S.W2d 68 
(1992). 

In adoption proceedings in which the 
circuit court determined that the natural 
father's consent was not necessary, the 
court's findings to support the determina- 
tion that allowing a minor child's stepfa- 
ther to adopt her and severing the child's 
relationship with her natural father 
served the child's best interests were not 
clearly against the preponderance of the 
evidence since (1) the child had a good 
relationship with her stepfather, (2) prior 
to seeing the child in 2005, the natural 
father had not seen her since 2002, had a 
number of felony convictions, had missed 
child support payments, was unemploy- 
ment, and lived with his mother, and (3) 
the natural mother and stepfather were 
morally fit to have the custody of the child, 
were physically and financially able to 
furnish suitable support, nurture, and 
education for the child, and wanted to 
establish a parent-child relationship with 
the child. Vick v. Cecil (In re A.M.C.), 368 
Ark. 369, 246 S.W3d 426 (2007). 

Custody of Another. 

Adopting couple held to have custody of 
child lawfully, despite lack of valid court 
order awarding custody. Dangelo v. Neil, 
10 Ark. App. 119, 661 S.W2d 448 (1983). 

Evidence. 

Evidence held insufficient to support 
trial court's granting the petition to adopt. 
Dale v. Franklin, 22 Ark. App. 98, 733 
S.W2d 747 (1987). 



9-9-207 



FAMILY LAW 



50 



Failure to Communicate or Support. 

In an appeal from a circuit court's de- 
termination that a stepfather could adopt 
his stepchild without the consent of the 
child's biological father, the father's claim 
that his lack of support and contact with 
his child was justified based upon medical 
problems and drug abuse failed because, 
even after the adoption petition was filed, 
the father made no attempt to see his 
child, and by that time, the father had 
ceased using illegal drugs. Roberts v. 
Brown, 103 Ark. App. 1, 285 S.W.3d 716 
(2008). 

Adoption decree in favor of the mother 
and the adoptive father was appropriate 
because the biological father voluntarily, 
willfully, arbitrarily, and without ad- 
equate excuse failed to pay child support 
in excess of one year as set forth under 
subdivision (a)(2) of this section. There- 
fore, his consent to the adoption was un- 
necessary. Powell v. Lane, 375 Ark. 178, 
289 S.W.3d 440 (2008). 

— In General. 

"Failed significantly" in this section 
does not mean failed totally but the fail- 
ure must be a significant one as con- 
trasted with an insignificant one; it de- 
notes a failure that is meaningful or 
important. Pender v. McKee, 266 Ark. 18, 
582 S.W.2d 929 (1979); Watkins v. Dud- 
geon, 270 Ark. 516, 606 S.W.2d 78 (Ct. 
App. 1980); Taylor v. Hill, 10 Ark. App. 45, 
661 S.W.2d 412 (1983); Dangelo v. Neil, 10 
Ark. App. 119, 661 S.W.2d 448 (1983). 

In order to adopt a child without the 
necessity of parental consent, the conduct 
of a parent who has failed significantly 
without justifiable cause to communicate 
with his child or to provide for the care 
and support of his child as required by law 
or judicial decree, must be willful in the 
sense of being voluntary and intentional; 
it must appear that the parent acted arbi- 
trarily and without just cause or adequate 
excuse. Roberts v. Swim, 268 Ark. 917, 597 
S.W.2d 840 (Ct. App. 1980); Watkins v. 
Dudgeon, 270 Ark. 516, 606 S.W2d 78 (Ct. 
App. 1980). 

Parent's consent held unnecessary due 
to significant, unjustifiable failure to com- 
municate with or support child. Henson v. 
Money, 273 Ark. 203, 617 S.W.2d 367 
(1981); Loveless v. May, 278 Ark. 127, 644 
S.W.2d 261 (1983); Dodson v. Donaldson, 
10 Ark. App. 64, 661 S.W.2d 425 (1983); 



Brown v. Johnson, 10 Ark. App. 110, 661 
S.W2d 443 (1983); Dangelo v. Neil, 10 
Ark. App. 119, 661 S.W.2d 448 (1983); In 
re Titsworth, 11 Ark. App. 197, 669 S.W.2d 
8 (1984); In re K.F.H., 311 Ark. 416, 844 
S.W.2d 343 (1993). 

Justifiable cause means that the signifi- 
cant failure must be willful in the sense of 
being voluntary and intentional; it must 
appear that the parent acted arbitrarily 
and without just cause or adequate ex- 
cuse. Taylor v. Hill, 10 Ark. App. 45, 661 
S.W2d 412 (1983). 

Consent of the natural father to adop- 
tion of his children by their natural 
mother and her second husband held not 
to be waived. Tisdale v. Seavey, 286 Ark. 
222, 691 S.W2d 144 (1985). 

The term "failed significantly without 
justifiable cause" does not mean that the 
parent must have failed totally but de- 
notes a failure that is meaningful, impor- 
tant, and willful. Manuel v. McCorkle, 24 
Ark. App. 92, 749 S.W.2d 341 (1988). 

Father's failure to communicate with 
his child was unjustified in spite of his 
claim that the lack of contact was not 
meaningful because of the child's young 
age and that he failed to visit because the 
mother and her new husband did not 
permit visitation; evidence showed that 
the father placed only 6 short telephone 
calls to the mother over a period of more 
than a year, and while he claimed to have 
written one letter to the mother it was 
never received; moreover the mother and 
her new husband asserted that they did 
not prevent visitation. Vier v. Vier, 62 Ark. 
App. 89, 968 S.W2d 657 (1998). 

The natural father's consent was not 
required where (1) the father admitted 
that he had no physical contact with the 
child for more than two years and that he 
did not pay court-ordered child support for 
almost two years, (2) he did not attempt to 
utilize the help of a court to enforce his 
visitation rights until approximately two 
and a half years after he learned of the 
first entry of adoption, and (3) he at- 
tempted to justify his failure to pay the 
court-ordered child support on financial 
trouble, including a bankruptcy, and 
credit-card debt. Reid v. Frazee, 72 Ark. 
App. 474, 41 S.W3d 397 (2001). 

Where father had not communicated 
with his children for over 12 years, the 
failure to communicate was not justifiable 
because sexual abuse allegations against 



51 



ADOPTION 



9-9-207 



the father did not prevent him from mak- 
ing phone calls or writing letters; thus, 
the step-father did not need the father's 
consent to adopt. McClelland v. Murray, 
92 Ark. App. 301, 213 S.W.3d 33 (2005). 

Trial court erred in granting a petition 
by step-mother to adopt her step-daughter 
without the mother's consent as the step- 
mother and father refused the mother's 
requests for contact with the child and the 
mother's gifts for the child; thus, there 
was not clear and convincing evidence 
that the mother's failure to provide for the 
care and support was "without justifica- 
tion." Neel v. Harrison, 93 Ark. App. 424, 
220 S.W.3d 251 (2005). 

— Sufficient Communication. 

Parent held to have failed to signifi- 
cantly communicate with child. Brown v. 
Fleming, 266 Ark. 814, 586 S.W.2d 8 (Ct. 
App. 1979); Belcher v. Bowling, 22 Ark. 
App. 248, 738 S.W.2d 804 (1987). 

Evidence supported finding that parent 
had not failed significantly to communi- 
cate with child. Taylor v. Hill, 10 Ark. App. 
45, 661 S.W.2d 412 (1983); In re Glover, 
288 Ark. 59, 702 S.W.2d 12 (1986). 

A letter written by the biological mother 
to the appointed friend of the court, re- 
questing visitation of her children, and a 
progress report sent from the custodial 
parents to her concerning the children did 
not qualify as communication with the 
children. In re K.F.H., 311 Ark. 416, 844 
S.W.2d 343 (1993). 

Natural mother's consent to stepmoth- 
er's adoption was required where mother's 
efforts to communicate with children had 
been frustrated by father changing his 
telephone and pager numbers and not 
furnishing them to mother and otherwise 
refusing to facilitate her contact with the 
children. Cassat v. Hennis, 74 Ark. App. 
226, 45 S.W.3d 866 (2001). 

— Support. 

The parent must furnish the support 
and maintenance himself and the duty is 
a personal one, and he may not rely upon 
assurance that someone else is properly 
supporting and maintaining the child to 
avoid the impact of subdivision (a)(2) of 
this section. Pender v. McKee, 266 Ark. 18, 
582 S.W.2d 929 (1979). 

Evidence was insufficient to prove that 
father had unjustifiably failed to support 
child. Chrisos v. Egleston, 7 Ark. App. 82, 
644 S.W.2d 326 (1983). 



Evidence held to support finding that 
natural parent had not failed significantly 
and without justifiable cause to contribute 
to child's support. Taylor v. Hill, 10 Ark. 
App. 45, 661 S.W.2d 412 (1983); In re 
Glover, 288 Ark. 59, 702 S.W.2d 12 (1986). 

A parent has the obligation to support a 
minor child, and no request for support is 
necessary. Dangelo v. Neil, 10 Ark. App. 
119, 661 S.W.2d 448 (1983). 

Evidence sufficient to support finding 
that parent failed to support child. 
Belcher v. Bowling, 22 Ark. App. 248, 738 
S.W.2d 804 (1987). 

— Time Period. 

The one-year period specified in this 
section need not be the year immediately 
preceding the judgment of adoption, since 
it means any one-year period. Pender v. 
McKee, 266 Ark. 18, 582 S.W.2d 929 
(1979); In re K.F.H., 311 Ark. 416, 844 
S.W.2d 343 (1993). 

Resumption of payment of support for a 
brief period, after the required period of 
one year, is not sufficient to bar an adop- 
tion without the consent of the delinquent 
father by starting a new one-year period of 
nonsupport under the statute. Pender v. 
McKee, 266 Ark. 18, 582 S.W.2d 929 
(1979). 

The filing of a petition for adoption 
establishes the cutoff date for dispensing 
with the natural parent's consent where 
the parent has failed to communicate with 
the child and provide support for one year. 
Dixon v. Dixon, 286 Ark. 128, 689 S.W.2d 
556 (1985); In re K.F.H., 311 Ark. 416, 844 
S.W.2d 343 (1993). 

One-year period, after which a parent 
may lose his right to consent to his child's 
adoption if he does not communicate with 
or support his child, must accrue before 
the adoption petition is filed. Dale v. Fran- 
klin, 22 Ark. App. 98, 733 S.W.2d 747 
(1987). 

The party seeking to adopt a child with- 
out the consent of a natural parent must 
prove by clear and convincing evidence 
that the failure to support the child not 
only continued for at least one year but 
also that it was willful, intentional, and 
without justifiable cause. Because one 
should not be permitted to assert a right 
until the facts on which it is predicated 
have accrued, the one-year period after 
which the parent may lose his right to 
consent to the adoption must accrue be- 



9-9-207 



FAMILY LAW 



52 



fore the petition for adoption is filed. Man- 
uel v. McCorkle, 24 Ark. App. 92, 749 
S.W.2d 341 (1988); In re Milam, 27 Ark. 
App. 100, 766 S.W.2d 944 (1989). 

There was no error in the application of 
this state's law pertaining to the one-year 
period specified in this section, to circum- 
stances occurring prior to the transfer of 
jurisdiction to the state, from a state 
where the time period was two years, 
instead of one year. In re K.F.H., 311 Ark. 
416, 844 S.W.2d 343 (1993). 

Guardian. 

Where guardian consented, the consent 
of the child's natural parents was unnec- 
essary. Richards v. Nesbitt, 237 Ark. 888, 
377 S.W2d 40 (1964) (decision under prior 
law). 

The law does not require a written re- 
quest for consent of legal guardian. 
Pender v. McKee, 266 Ark. 18, 582 S.W.2d 
929 (1979). 

Notice. 

Under this subchapter, if consent to the 
adoption has been given, notice to the 
consenting party is not required, nor is 
any further participation required of 
them; consequently, where mother con- 
sented to adoption, she was not entitled to 
subsequent service of process preceding 
the adoption nor was a guardian ad litem 
required to be appointed to represent her. 
Temple v. Tucker, 277 Ark. 81, 639 S.W.2d 
357 (1982). 

Unmarried father lacking any substan- 
tial relationship with his child is not en- 
titled to notice of the child's adoption 
proceeding under either the due process 
clause or the equal protection clause of 
U.S. Const,, Amend. 14. In re S.J.B., 294 
Ark. 598, 745 S.W.2d 606 (1988); In re 
J.L.T., 31 Ark. App. 85, 788 S.W.2d 494 
(1990). 

Where the maternal grandparents' 
daughter was alive and had given consent 
to the adoption of her child, no consent 
was required by the maternal grandpar- 
ents nor was notice required to be given to 
them before the adoption could proceed. 
Henry v. Buchanan, 364 Ark. 485, 221 
S.W.3d 346 (2006). 

Proof. 

In an adoption proceeding contested by 
a natural parent the facts justifying the 
adoption must be established by clear and 



convincing evidence. Harper v. Caskin, 
265 Ark. 558, 580 S.W2d 176 (1979); Mc- 
Kee v. Bates, 10 Ark. App. 51, 661 S.W2d 
415 (1983). 

Party seeking to adopt must prove by 
clear and convincing evidence that the 
nonconsenting parent has failed signifi- 
cantly without justifiable cause either to 
communicate with or to provide for the 
care and support of the child for the statu- 
tory period. Chrisos v. Egleston, 7 Ark. 
App. 82, 644 S.W.2d 326 (1983); Taylor v. 
Hill, 10 Ark. App. 45, 661 S.W2d 412 
(1983); Dodson v. Donaldson, 10 Ark. App. 
64, 661 S.W2d 425 (1983); Brown v. 
Johnson, 10 Ark. App. 110, 661 S.W.2d 443 
(1983); Dangelo v. Neil, 10 Ark. App. 119, 
661 S.W2d 448 (1983); In re Titsworth, 11 
Ark. App. 197, 669 S.W.2d 8 (1984). 

When proving that a natural parent's 
consent is not required, the parties seek- 
ing to adopt bear the heavy burden of 
proving by clear and convincing evidence 
facts which justify dispensing with the 
required consent of the natural parents. 
In re Glover, 288 Ark. 59, 702 S.W2d 12 
(1986). 

The party seeking to adopt a child with- 
out the consent of a natural parent must 
prove by clear and convincing evidence 
that the parent has failed significantly or 
without justifiable cause to communicate 
with the child or to provide for the care 
and support of the child as required by 
law or judicial decree. Bemis v. Hare, 19 
Ark. App. 198, 718 S.W.2d 481 (1986). 

Heavy burden is upon party seeking to 
adopt a child without consent of a natural 
parent to prove the failure to communi- 
cate or the failure to support by clear and 
convincing evidence. Dale v. Franklin, 22 
Ark. App. 98, 733 S.W2d 747 (1987); In re 
B.A.B., 40 Ark. App. 86, 842 S.W2d 68 
(1992). 

In vacating an adoption decree, the trial 
court never made a determination of 
whether the natural father qualified as a 
father whose consent was required under 
§ 9-9-206(a)(2), so the matter was re- 
manded to the trial court for an analysis 
of the evidence on that issue; the father's 
consent was not required under subdivi- 
sion (a)(3) of this section if it was deter- 
mined that it was not required under 
§ 9-9-206(a)(2). Britton v. Gault, 80 Ark. 
App. 311, 94 S.W.3d 926 (2003). 



53 ADOPTION 9-9-208 

Unreasonable Withholding of Con- Administrative Procedure Act (§ 25-15- 

sent. 201 et seq.), and circuit court review. 

The courts may grant a petition for Patterson v. Robbins, 295 Ark. 511, 749 

adoption to petitioners regardless of the S.W.2d 330 (1988). 

arbitrary dissent by a natural father. Wat- "Where the adoptive parent left the child 

TsTct A iTsO 2 ) 70 ' 6 ° 6 Wh ° Suffered fr ° m an incurable skin con - 

; U1 ' PP" «i , j r M j • •£ dition alone in a motor home unattended 

Although a father had failed signifi- , j 14. it * ■ i ^.jj *. 

,, r • i c 4- 4. by an adult, the trial court did not err in 

cantly for a period of one year to support „ , . ,, ' , , . 

his child without justifiable cause, that findl "f tha ^ ^f uard u ian was nc * Ef- 
fect did not preclude him from objecting to s ° nabl y withholding her consent to the 
a proposed adoption or from being fully adoption of the child under subdivision 
heard in the matter, rather it meant that ^^ of tms section. The trial court fo- 
he could not defeat the adoption by simply cused on the special medical needs of the 
withholding his consent. Watkins v. Dud- cmld > including her epidermolysis bullosa 
geon, 270 Ark. 516, 606 S.W2d 78 (Ct. condition, seizures, and episodes of hold- 
App. 1980). m g ner breath and passing out. Tom v. 
This section gives the probate court Cox, 101 Ark. App. 388, 278 S.W3d 110 
authority to decide the issue raised by the (2008). 

foster parents whether the Department of Cited: In re Reeves, 309 Ark. 385, 831 

Human Services, as legal guardian of the S.W2d 607 (1992); In re D.J.M., 39 Ark. 

minor, has unreasonably withheld its con- App. 116, 839 S.W.2d 535 (1992); Reid v. 

sent to adopt. The foster parents' rights in Frazee, 61 Ark. App. 216, 966 S.W2d 272 

that respect are not subject exclusively to (1998); In re SCD, 358 Ark. 51, 186 S.W.3d 

the department's policies, the Arkansas 225 (2004). 

9-9-208. How consent is executed. 

(a) The required consent to adoption shall be executed at any time 
after the birth of the child and in the manner following: 

(1) If by the individual to be adopted, in the presence of the court; 

(2) If by an agency, by the executive head or other authorized 
representative, in the presence of a person authorized to take acknowl- 
edgments; 

(3) If by any other person, in the presence of the court or in the 
presence of a person authorized to take acknowledgments; 

(4) If by a court, by appropriate order or certificate. 

(b) A consent which does not name or otherwise identify the adopting 
parent is valid if the consent contains a statement by the person whose 
consent it is that the person consenting voluntarily executed the 
consent irrespective of disclosure of the name or other identification of 
the adopting parent. 

(c) If the parent is a minor, the writing shall be signed by a 
court-ordered guardian ad litem, who has been appointed by a judge of 
a court of record in this state to appear on behalf of the minor parent for 
the purpose of executing consent. The signing shall be made in the 
presence of an authorized representative of the Arkansas licensed 
placement agency taking custody of the child, or in the presence of a 
notary public, or in the presence and with the approval of a judge of a 
court of record of this state or any other state in which the minor was 
present at the time it was signed. 



9-9-209 



FAMILY LAW 



54 



History. Acts 1977, No. 735, § 8; A.S.A. 
1947, § 56-208; Acts 1991, No. 774, § 1. 

RESEARCH REFERENCES 

U. Ark. Little Rock L.J. Survey — Survey — Family Law, 13 U. Ark. Little 
Family Law, 11 U. Ark. Little Rock L.J. Rock L.J. 369. 
215. 

CASE NOTES 



Analysis 

Construction. 
Visitation Agreement. 

Construction. 

This section and § 9-9-220 are mutu- 
ally exclusive, in that they address sepa- 
rate methods by which a child may be 
adopted and provide different means by 
which the relinquishment of consent or 
direct consent may be withdrawn. In re 
Parsons, 302 Ark. 427, 791 S.W.2d 681 
(1990). 

This section and § 9-9-209 are mutu- 
ally exclusive from § 9-9-220 in obtaining 
the relinquishment of consent or consent 
to an adoption, and either one or the other 
should be employed based on the appli- 
cable circumstances of the adoption; and 
the use of both relinquishment of parental 
rights and consent provisions in the affi- 
davit and consent of natural mother docu- 
ment was in contravention of these sec- 
tions. In re Parsons, 302 Ark. 427, 791 
S.W.2d 681 (1990). 

Where both relinquishment of parental 

9-9-209. Withdrawal of consent. 



rights and consent provisions were con- 
tained in the same document purporting 
to sanction the adoption of a minor child 
and the trial court included the ten day 
right to withdraw provision in its decree of 
adoption, the document was, in the main, 
a relinquishment of parental rights as 
embodied in § 9-9-220, and natural moth- 
er's revocation of her relinquishment five 
days after she signed the affidavit was 
effective. In re Parsons, 302 Ark. 427, 791 
S.W.2d 681 (1990). 

Local rule imposed by chancellor blend- 
ing the different statutory consent re- 
quirements of this section and § 9-9-220 
was inappropriate. In re Parsons, 302 Ark. 
427, 791 S.W.2d 681 (1990). 

Visitation Agreement. 

An agreement to provide for visitation 
rights for a member of the natural par- 
ent's family as a basis for natural father's 
consent to an adoption in the absence of 
statute is against public policy and void 
and unenforceable. Poe v. Case, 263 Ark. 
488, 565 S.W.2d 612 (1978). 

Cited: Brown v. Meekins, 282 Ark. 186, 
666 S.W.2d 710 (1984). 



(a) A consent to adoption cannot be withdrawn after the entry of a 
decree of adoption. 

(b)(1) A consent to adopt may be withdrawn within ten (10) calendar 
days, or, if a waiver of the ten-day period is elected under subdivision 
(b)(3) of this section, five (5) calendar days after it is signed or the child 
is born, whichever is later, by filing an affidavit with the probate 
division clerk of the circuit court in the county designated by the 
consent as the county in which the guardianship petition will be filed, 
if there is a guardianship, or where the petition for adoption will be 
filed, if there is no guardianship. If the ten-day period, or, if a waiver of 
the ten-day period is elected under subdivision (b)(3) of this section, the 
five-day period ends on a weekend or a legal holiday, the person may file 
the affidavit the next working day. No fee shall be charged for the filing 
of the affidavit. The court may waive the ten-day period for filing a 



55 



ADOPTION 



9-9-209 



withdrawal of consent for agencies as defined by § 9-9-202(5), minors 
over ten (10) years of age who consented to the adoption, or biological 
parents if a stepparent is adopting. 

(2) The consent shall state that the person has the right of with- 
drawal of consent and shall provide the address of the probate division 
clerk of the circuit court of the county in which the guardianship will be 
filed, if there is a guardianship, or where the petition for adoption will 
be filed, if there is no guardianship. 

(3) The consent shall state that the person may waive the ten-day 
period for the withdrawal of consent for an adoption and elect to limit 
the maximum time for the withdrawal of consent for an adoption to five 
(5) days. 



History. Acts 1977, No. 735, § 9; A.S.A. 
1947, § 56-209; Acts 1991, No. 774, § 2; 
1995, No. 1284, § 1; 2003, No. 1185, § 7; 
2005, No. 437, § 3; 2009, No. 230, § 1. 

A.C.R.C. Notes. Ark. Const., Amend. 
80, adopted by voter referendum and ef- 
fective July 1, 2001, abolished chancery 
courts and established circuit courts as 
the trial courts of original jurisdiction. 
The jurisdiction of the circuit courts now 
includes "all matters previously cogni- 
zable by Circuit, Chancery, Probate and 
Juvenile Court...." 

Amendments. The 2005 amendment, 



in the last sentence of (b)(1), inserted 
"court may waive the" and "minors over 
ten (10) years of age who consented to the 
adoption, or biological parents if a step- 
parent is adopting" and substituted "con- 
sent for" for "consent shall not apply to." 
The 2009 amendment, in (b), in (b)(3) 
inserted "or, if a waiver of the ten-day 
period is elected under subdivision (b)(3) 
of this section, five (5) calendar days" and 
"or, if a waiver of the ten-day period is 
elected under subdivision (b)(3) of this 
section, the five-day period," inserted "di- 
vision" in (b)(2), and added (b)(3). 



RESEARCH REFERENCES 



U. Ark. Little Rock L.J. Arkansas 
Law Survey, Waddell, Family Law, 7 U. 
Ark. Little Rock L.J. 229. 

Survey — Family Law, 11 U. Ark. Little 
Rock L.J. 215. 



Survey, Family Law, 13 U. Ark. Little 
Rock L.J. 369. 



CASE NOTES 



Analysis 

Construction. 
Final Decree. 
Interlocutory Order. 
Withdrawal Prior to Filing. 

Construction. 

Section 9-9-208 and this section are 
mutually exclusive from § 9-9-220 in ob- 
taining the relinquishment of consent or 
consent to an adoption, and either one or 
the other should be employed based on the 
applicable circumstances of the adoption; 
and the use of both relinquishment of 
parental rights and consent provisions in 
the affidavit and consent of natural 



mother document was in contravention of 
these sections. In re Parsons, 302 Ark. 
427, 791 S.W.2d 681 (1990). 

Final Decree. 

A natural parent may not withdraw his 
consent to adoption after entry of an order 
which by its terms does not require a 
subsequent hearing, except upon proof of 
fraud, duress, or intimidation. McCluskey 
v. Kerlen, 278 Ark. 338, 645 S.W.2d 948 
(1983); In re Dailey, 20 Ark. App. 180, 726 
S.W.2d 292 (1987); Dale v. Franklin, 22 
Ark. App. 98, 733 S.W.2d 747 (1987). 

Interlocutory Order. 

Consent held not revocable after entry 
of interlocutory order of adoption. A. v. B., 



9-9-210 FAMILY LAW 56 

217 Ark. 844, 233 S.W.2d 629 (1950); only upon a proper showing of fraud, du- 

Bradford v. Fitzgerald, 252 Ark. 655, 480 ress, or intimidation. Pierce v. Pierce, 279 

S.W.2d 336 (1972) (preceding cases de- Ark. 62, 648 S.W.2d 487 (1983). 

cided under prior law); McCluskey v. 

Kerlen, 278 Ark. 338, 645 S.W.2d 948 Withdrawal Prior to Filing. 

(1983). This sec tion is silent as to whether 

Although a mother can revoke her con- consent can be withdrawn prior to the 
sent for adoption before an interlocutory filin g of adoption petition. Under this sec- 
order, her revocation afterwards and be- tion, consent to adopt cannot be with- 
fore the final decree is controlled by sur- drawn after the entry of the final order; 
rounding circumstances. Martin v. Ford, prior to entry of adoption decree, consent 
224 Ark. 993, 277 S.W.2d 842 (1955) (de- can be withdrawn if it is found to be in the 
cision under prior law). best interest of the child and court orders 

A natural mother can withdraw her withdrawal of consent. Dale v. Franklin, 

consent to the adoption of her child after 22 Ark. App. 98, 733 S.W.2d 747 (1987). 

an interlocutory decree has been entered Cited: Summers v. Mylan, 287 Ark. 

but before a final decree has been entered 150, 697 S.W.2d 91 (1985). 

9-9-210. Petition for adoption. 

(a) A petition for adoption signed and verified by the petitioner, shall 
be filed with the clerk of the court, and state: 

(1) The date and place of birth of the individual to be adopted, if 
known; 

(2) The name to be used for the individual to be adopted; 

(3) The date the petitioner acquired custody of the minor and of 
placement of the minor and the name of the person placing the minor; 
and a statement as to how petitioner acquired custody of the minor; 

(4) The full name, age, place, and duration of residence of the 
petitioner; 

(5) The marital status of the petitioner, including the date and place 
of marriage, if married; 

(6) That the petitioner has facilities and resources, including those 
available under a subsidy agreement, suitable to provide for the 
nurture and care of the minor to be adopted and that it is the desire of 
the petitioner to establish the relationship of parent and child with the 
individual to be adopted; 

(7) A description and estimate of value of any property of the 
individual to be adopted; 

(8) The name of any person whose consent to the adoption is 
required, but who has not consented, and facts or circumstances which 
excuse the lack of his normally required consent, to the adoption; and 

(9) In cases involving a child born to a mother unmarried at the time 
of the child's birth, a statement that an inquiry has been made to the 
Putative Father Registry and either: 

(A) No information has been filed in regard to the child born to this 
mother; or 

(B) Information is contained in the registry. 

(b) A certified copy of the birth certificate or verfication of birth 
record of the individual to be adopted, if available, and the required 
consents and relinquishments shall be filed with the clerk. 



57 



ADOPTION 



9-9-211 



History. Acts 1977, No. 735, § 10; 
A.S.A. 1947, § 56-210; Acts 1989, No. 496, 
§ 6. 



RESEARCH REFERENCES 



Ark. L. Notes. Sampson, Coats, & 
Barger, Arkansas' Putative Father Regis- 
try and Related Adoption Code Provisions: 



Inadequate Protection for Thwarted Puta- 
tive Fathers, 1997 Ark. L. Notes 49. 



CASE NOTES 



Analysis 

Residence. 
Standing to Adopt. 
Substantial Compliance. 

Residence. 

Adoption order was fatally defective 
where neither the petition nor the order 
recited that the prospective adoptive par- 
ent or the minors sought to be adopted 
were residents of the county. Ozment v. 
Mann, 235 Ark. 901, 363 S.W.2d 129 
(1962) (decision under prior law). 

Standing to Adopt. 

Subdivision (a)(3) of this section pro- 
vides that a petition for adoption shall 
state "the date the petitioner acquired 
custody of the minor and of placement of 
the minor and the name of the person 
placing the minor; and a statement as to 
how petitioner acquired custody of the 
minor." That language, having to do with 



the contents of the petition, does not mean 
that a person who does not have custody 
and with whom the child has not been 
"placed" has no standing; standing to 
adopt is conferred by § 9-9-204, and that 
statute does not exclude persons who have 
served as foster parents of the minor to be 
adopted. Patterson v. Robbins, 295 Ark. 
511, 749 S.W.2d 330 (1988). 

Substantial Compliance. 

A petition for the adoption of a child 
held a sufficient compliance. Taylor v. Col- 
lins, 172 Ark. 541, 289 S.W. 466 (1927) 
(decision under prior law); Arkansas Dep't 
of Human Servs. v. Couch, 38 Ark. App. 
165, 832 S.W.2d 265 (1992). 

A petition for adoption is valid where 
there is substantial compliance with the 
statutory requirements; strict compliance 
is not required. Reid v. Frazee, 72 Ark. 
App. 474, 41 S.W.3d 397 (2001). 

Cited: In re Reeves, 309 Ark. 385, 831 
S.W.2d 607 (1992). 



9-9-211. Report of petitioner's expenditures. 

(a) Except as specified in subsection (b) of this section, the petitioner, 
in any proceeding for the adoption of a minor, shall file, before the 
petition is heard, a full accounting report in a manner acceptable to the 
court of all disbursements of anything of value made or agreed to be 
made by or on behalf of the petitioner in connection with the adoption. 
The petitioner shall file a sworn affidavit showing any expenses 
incurred in connection with: 

(1) The birth of the minor; 

(2) Placement of the minor with petitioner; 

(3) Medical or hospital care received by the mother or by the minor 
during the mother's prenatal care and confinement; 

(4) Services relating to the adoption or to the placement of the minor 
for adoption which were received by or on behalf of the petitioner, either 
natural parent of the minor, or any other person; and 

(5) Fees charged by all attorneys involved in the adoption, including 
those fees charged by out-of-state attorneys. 



9-9-212 FAMILY LAW 58 

(b) This section does not apply to an adoption by a stepparent whose 
spouse is a natural or adoptive parent of the child, or to an adoption 
where the person to be adopted is an adult, or where the petitioner and 
the minor are related to each other in the second degree. 

(c) The petitioner shall file a signed, sworn affidavit verifying that all 
expenses as required by this section have been truthfully listed and 
shall be informed by the court as to the consequences of knowingly 
making false material statements. 

History. Acts 1977, No. 735, § 11; 
1985, No. 107, § 1; A.S.A. 1947, § 56-211. 

9-9-212. Hearing on petition — Requirements. 

(a)(1) Before any hearing on a petition, the period in which the 
relinquishment may be withdrawn under § 9-9-220 or in which consent 
may be withdrawn under § 9-9-209, whichever is applicable, must have 
expired. 

(2) No orders of adoption, interlocutory or final, may be entered prior 
to the period for withdrawal. 

(3) After the filing of a petition to adopt a minor, the court shall fix a 
time and place for hearing the petition. 

(4) At least twenty (20) days before the date of hearing, notice of the 
filing of the petition and of the time and place of hearing shall be given 
by the petitioner to: 

(A) Any agency or person whose consent to the adoption is required 
by this subchapter but who has not consented; and 

(B) A person whose consent is dispensed with upon any ground 
mentioned in § 9-9-207(a)(l), (2), (6), (8), and (9). 

(5)(A) When the petitioner alleges that any person entitled to notice 
cannot be located, the court shall appoint an attorney ad litem who 
shall make a reasonable effort to locate and serve notice upon the 
person entitled to notice; and upon failing to so serve actual notice, 
the attorney ad litem shall publish a notice of the hearing directed to 
the person entitled to notice in a newspaper having general circula- 
tion in the county one (1) time a week for four (4) weeks, the last 
publication being at least seven (7) days prior to the hearing. 

(B) Before the hearing, the attorney ad litem shall file a proof of 
publication and an affidavit reciting the efforts made to locate and 
serve actual notice upon the person entitled to notice. 
(b)(1)(A) Before placement of the child in the home of the petitioner, 
a home study shall be conducted by any child welfare agency licensed 
under the Child Welfare Agency Licensing Act, § 9-28-401 et seq., or 
any licensed certified social worker. 

(B) Home studies on non-Arkansas residents may also be con- 
ducted by a person or agency in the same state as the person wishing 
to adopt as long as the person or agency is authorized under the law 
of that state to conduct home studies for adoptive purposes. 
(2) The Department of Human Services shall not be ordered by any 
court to conduct an adoptive home study, unless: 



59 ADOPTION 9-9-212 

(A)(i) The court has first determined the responsible party to be 
indigent; or 

(ii) The child to be adopted is the subject of an open dependency- 
neglect case and the goal of the case is adoption; and 

(B) The person to be studied lives in the State of Arkansas. 
(3) All home studies shall be prepared and submitted in conformity 
with the regulations promulgated pursuant to the Child Welfare 
Agency Licensing Act, § 9-28-401 et seq. 

(4)(A) The home study shall address whether the adoptive home is a 
suitable home and shall include a recommendation as to the approval 
of the petitioner as an adoptive parent. 

(B) A written report of the home study shall be filed with the court 
before the petition is heard. 

(C) The home study shall contain an evaluation of the prospective 
adoption with a recommendation as to the granting of the petition for 
adoption and any other information the court requires regarding the 
petitioner or minor. 

(5)(A) The home study shall include a state-of-residence criminal 
background check, if available, and national fingerprint-based crimi- 
nal background check performed by the Federal Bureau of Investi- 
gation in compliance with federal law and regulation on the adoptive 
parents and all household members eighteen (18) years of age and 
older, excluding children in foster care. 

(B) If a prospective adoptive parent has lived in a state for at least 
six (6) years immediately prior to adoption, then only a state-of- 
residence criminal background check shall be required. 

(C) If the Department of Human Services has responsibility for 
placement and care of the child to be adopted, the home study shall 
include a national fingerprint-based criminal background check per- 
formed by the Federal Bureau of Investigation in compliance with 
federal law and regulation on the prospective adoptive parents and 
all household members eighteen (18) years of age or older, excluding 
children in foster care. 

(D) Upon request by the Department of Human Services, local law 
enforcement shall provide the Department of Human Services with 
local criminal background information on the prospective adoptive 
parents and all household members eighteen (18) years of age and 
older who have applied to be an adoptive family 

(6) A Child Maltreatment Central Registry check shall be required 
for all household members age ten (10) and older, excluding children in 
foster care, as a part of the home study, if such a registry is available in 
their state of residence. 

(7) Additional national fingerprint-based criminal background 
checks performed by the Federal Bureau of Investigation are not 
required for international adoptions as they are already a part of the 
requirements for adoption of the United States Department of Home- 
land Security Citizenship and Immigration Services. 

(8) Each prospective adoptive parent shall be responsible for pay- 
ment of the costs of the criminal background checks, both the in-state 



9-9-212 FAMILY LAW 60 

check and the Federal Bureau of Investigation check if applicable, and 
shall be required to cooperate with the requirements of the Department 
of Arkansas State Police and the Child Maltreatment Central Registry, 
if available, with regard to the criminal and central registry back- 
ground checks, including, but not limited to, signing a release of 
information. 

(9)(A) Upon completion of the criminal record checks, the Depart- 
ment of Arkansas State Police shall forward all information obtained 
to either the Department of Human Services if it is conducting the 
home study, to the agency, to the licensed certified social worker, or to 
the court in which the adoption petition will be filed. 

(B) The Department of Arkansas State Police shall forward all 
information obtained from the national fingerprint-based criminal 
background checks performed by the Federal Bureau of Investigation 
to either the Department of Human Services, if it is doing the home 
study, or to the court in which the adoption petition will be filed. 

(C) The circuit clerk of the county where the petition for adoption 
has been or will be filed shall keep a record of the national finger- 
print-based criminal background checks performed by the Federal 
Bureau of Investigation for the court. 

(c)(1) Unless directed by the court, a home study is not required in 
cases in which the person to be adopted is an adult. The court may also 
waive the requirement for a home study when a stepparent is the 
petitioner or the petitioner and the minor are related to each other in 
the second degree. 

(2) The home study shall not be waived when the case is a fast-track 
adoption of a Garrett's Law baby under § 9-9-702. 

(d)(1) After the filing of a petition to adopt an adult, the court by 
order shall direct that a copy of the petition and a notice of the time and 
place of the hearing be given to any person whose consent to the 
adoption is required but who has not consented. 

(2) The court may order a home study to assist it in determining 
whether the adoption is in the best interest of the persons involved. 

(3) The Department of Human Services shall not be ordered by any 
court to conduct a home study unless: 

(A)(i) The court has first determined the responsible party to be 
indigent; or 

(ii) The person to be adopted is the subject of an open dependency- 
neglect case and the goal of the case is adoption; and 

(B) The person to be studied lives in the State of Arkansas. 

(4) All home studies shall be prepared and submitted in conformity 
with the regulations promulgated pursuant to the Child Welfare 
Agency Licensing Act, § 9-28-401 et seq. 

(e)(1) Notice shall be given in the manner appropriate under rules of 
civil procedure for the service of process in a civil action in this state or 
in any manner the court by order directs. 

(2) Proof of the giving of the notice shall be filed with the court before 
the petition is heard. 



61 ADOPTION 9-9-212 

(3) Where consent is not required, notice may be by certified mail 
with return receipt requested. 

(f) When one (1) parent of a child or children is deceased, and the 
parent-child relationship has not been eliminated at the time of death, 
and adoption proceedings are instituted subsequent to such decease, 
the parents of the deceased parent shall be notified under the proce- 
dures prescribed in this subchapter of such adoption proceedings, 
except when the surviving parent-child relationship has been termi- 
nated pursuant to § 9-27-341. 

(g)(1)(A) Except as provided under subdivision (g)(2) of this section, 
before placement for adoption, the licensed adoption agency or, when 
an agency is not involved, the person, entity, or organization handling 
the adoption shall compile and provide to the prospective adoptive 
parents a detailed, written health history and genetic and social 
history of the child that excludes information that would identify 
birth parents or members of a birth parent's family. 

(B) The detailed, written health history and genetic and social 
history shall be set forth in a document that is separate from any 
document containing information identifying the birth parents or 
members of a birth parent's family. 

(C) The detailed, written health history and genetic and social 
history shall be clearly identified and shall be filed with the clerk 
before the entry of the adoption decree. 

(D) Upon order of the court for good cause shown, the clerk may 
tender to a person identified by the court a copy of the detailed, 
written health history and genetic and social history. 

(2) Unless directed by the court, a detailed, written health history 
and genetic and social history of the child is not required if: 

(A) The person to be adopted is an adult; 

(B) The petitioner is a stepparent; or 

(C) The petitioner and the child to be adopted are related to each 
other within the second degree of consanguinity. 

History. Acts 1977, No. 735, § 12; Amendments. The 2005 amendment 

1979, No. 599, §§ 3, 4; 1983, No. 324, § 1; by No. 437 inserted "surviving" following 

1985, No. 445, §§ 1, 2; A.S.A. 1947, § 56- "except when the" in (f). 

212; Acts 1991, No. 774, § 3; 1991, No. The 2005 amendment by No. 1689 re- 

1214, § 1; 1993, No. 1204, § 1; 1995, No. designated former (g)(l)-(4) as present 

1067, § 1; 1997, No. 1106, § 1; 2003, No. (g)(l)(A)-(D); added "Except as provided 

650, § 3; 2005, No. 437, § 4; 2005, No. under subdivision (g)(2) of this section" in 

1689, § 1; 2007, No. 539, § 4; 2009, No. (g)(1)(A); and added (g)(2). 

724, § 1. The 2007 amendment added (b)(5)(C) 

A.C.R.C. Notes. Ark. Const., Amend, and (D); and inserted "Department of in 

80, adopted by voter referendum and ef- (b)(8) and (b)(9)(B). 

fective July 1, 2001, abolished chancery The 2009 amendment rewrote (b)(2), 

courts and established circuit courts as (b)(5)(A), and (b)(5)(C); substituted "eigh- 

the trial courts of original jurisdiction, teen (18)" for "sixteen (16)" in (b)(5)(A), 

The jurisdiction of the circuit courts now (b)(5)(C), and (b)(5)(D); inserted "exclud- 

includes "all matters previously cogni- ing children in foster care" in (b)(6); in- 

zable by Circuit, Chancery, Probate and serted "performed by the Federal Bureau 

Juvenile Court...." of Investigation in compliance with fed- 



9-9-212 



FAMILY LAW 



62 



eral law and regulation" in (b)(5)(A) and 
(b)(5)(C); inserted "performed by the Fed- 
eral Bureau of Investigation" in (b)(7), 
(b)(9)(B), and (b)(9)(C); deleted "except the 
juvenile division of circuit court" following 
"any court" in (d)(3); inserted "both the 
in-state check and the Federal Bureau of 



Investigation check if applicable" in (b)(8); 
inserted (c)(2) and (d)(3)(A)(ii) and redes- 
ignated subdivisions accordingly; and 
made related and minor stylistic changes. 
Cross References. Preference for 
relative and consideration of religion, § 9- 
9-102. 



RESEARCH REFERENCES 



U. Ark. Little Rock L.J. Legislation of 
the 1983 General Assembly, Family Law, 6 
U. Ark. Little Rock L.J. 624. 

Legislative Survey, Family Law, 16 U. 
Ark. Little Rock L.J. 131. 



U. Ark. Little Rock L. Rev. Survey of 
Legislation, 2003 Arkansas General As- 
sembly, Family Law, Uniform Adoption 
Act, 26 U. Ark. Little Rock L. Rev. 408. 



CASE NOTES 



Analysis 

Grandparents. 

Notice. 

Service of Process. 

State Agency. 

Validity of Marriage. 

Waiver of Investigation. 

Grandparents. 

This section does not grant to grandpar- 
ents a right to intervene or a right to be 
heard in adoption proceedings. Tompkins 
v. Tompkins, 341 Ark. 949, 20 S.W.3d 385 
(2000). 

Paternal grandparents did not have the 
right to be heard in an adoption proceed- 
ing by the natural mother's new husband 
as (1) they never had custody of the child 
at issue, and the natural mother had 
retained custody at all times, and (2) their 
visitation with the child was the result of 
a mutual agreement, rather than pursu- 
ant to a court order. Tompkins v. Tomp- 
kins, 341 Ark. 949, 20 S.W.3d 385 (2000). 

Where the biological mother gave con- 
sent to the adoptive mother to adopt her 
daughter, neither consent nor notice to the 
maternal grandparents was required be- 
fore the adoption could proceed. Henry v. 
Buchanan, 364 Ark. 485, 221 S.W.3d 346 
(2006). 

Notice. 

Party having prior custody of child was 
entitled to notice and was a necessary 
party. Siebert v. Benson, 243 Ark. 843, 422 
S.W.2d 683 (1968) (decision under prior 
law). 

Interlocutory decree of adoption should 



be annulled where minor mother was not 
served with process prior to the entry of 
the interlocutory order, and where the 
decree was rendered without a defense by 
a guardian ad litem. Schrum v. Bolding, 
260 Ark. 114, 539 S.W2d 415 (1976), su- 
perseded by statute as stated in, Temple v. 
Tucker, 277 Ark. 81, 639 S.W2d 357 
(1982), superseded by statute as stated in, 
Hamm v. Office of Child Support Enforce- 
ment, 336 Ark. 391, 985 S.W2d 742 (1999) 
(decision under prior law). 

Under this subchapter, if consent to the 
adoption has been given, notice to the 
consenting party is not required, nor is 
any further participation required of 
them. Temple v. Tucker, 277 Ark. 81, 639 
S.W2d 357 (1982). 

Alleged father of child was not entitled 
to notice of adoption proceeding under this 
section, where he was not registered in 
the state putative father registry, even 
though he had established a substantial 
relationship with the child. In re Reeves, 
309 Ark. 385, 831 S.W.2d 607 (1992). 

A decree of adoption would be reversed 
and remanded for a hearing to determine 
whether the natural father's consent to 
adoption was required where he did not 
receive notice of the petition to adopt and 
an attorney ad litem was not appointed to 
represent his right to receive notice. Reid 
v. Frazee, 61 Ark. App. 216, 966 S.W2d 
272 (1998). 

The maternal grandmother was not en- 
titled to visitation with two children 
adopted by the natural father's new wife 
under § 9-9-2 15(a)(1), because she was 
barred from filing her custody/visitation 



63 



ADOPTION 



9-9-213 



action by the one-year statute of limita- 
tions found in § 9-9-2 16(b) as she clearly 
was challenging the effect of the adoption 
decree by claiming visitation rights under 
the former statute; a contrary result was 
not required by the fact that the grand- 
mother was not given notice of the adop- 
tion proceeding as required by subsection 
(f) of this section. Tate v. Bennett, 341 Ark. 
829, 20 S.W.3d 370 (2000). 

Failure to give a natural parent the 
notice of an adoption proceeding required 
by subsections (a) and (f) of this section 
violated due process and entitled the par- 
ent to have the subsequently entered de- 
cree set aside. Mayberry v. Flowers, 347 
Ark. 476, 65 S.W.3d 418 (2002). 

Where the putative father and the 
child's mother had a brief romantic rela- 
tionship, he did not know the mother was 
pregnant and did not see or talk to her 
after the encounter, and at the time an 
adoption petition was filed he had not 
registered with the putative-father regis- 
try, the putative father was not statutorily 
entitled to notice of the adoption proceed- 
ing. Escobedo v. Nickita, 365 Ark. 548, 231 
S.W.3d 601 (2006). 

In an adoption case, where the putative 
father was served with a summons, peti- 
tion for adoption, notice of hearing, and 
notice of deposition on December 14, 2004, 
and the hearing was held on December 20, 
2004, the notice given the father satisfied 
the requirements of due process. Escobedo 
v. Nickita, 365 Ark. 548, 231 S.W.3d 601 
(2006). 

Service of Process. 

When it appeared from the record that 
the parents were nonresidents and their 
consent to an adoption was never given, it 
was necessary that service be obtained by 
publication as provided by statute; other- 
wise the court was without jurisdiction 
and the order of adoption was subject to 



collateral attack in habeas corpus pro- 
ceedings. Hughnes v. Cain, 210 Ark. 476, 
196 S.W2d 758 (1946) (decision under 
prior law). 

State Agency. 

Probate court can act on petition for 
adoption without consent of public welfare 
director (now Director of the Department 
of Human Services) appointed as guard- 
ian for the child. Ratcliffe v. Williams, 220 
Ark. 807, 250 S.W.2d 330 (1952) (decision 
under prior law). 

Validity of Marriage. 

Only argument advanced by the biologi- 
cal father in an adoption case was that the 
mother's second marriage was void be- 
cause he and the mother were still validly 
married and the biological father was col- 
laterally estopped from asserting that ar- 
gument. The biological father failed to 
overcome the presumption of the validity 
of the marriage between the mother and 
the adoptive father and it followed that he 
failed to prove that the adoptive father 
was not the child's stepparent at the time 
of the adoption and that a home study was 
required under subdivision (b)(1)(A) of 
this section. Powell v. Lane, 375 Ark. 178, 
289 S.W3d 440 (2008). 

Waiver of Investigation. 

Although the trial court did not ex- 
pressly waive the investigation pursuant 
to subsection (c) of this section, the trial 
court did not err when it found that it was 
in the child's best interests to remain with 
the adoptive parents where it focused on 
the stability she had with the adoptive 
parents, especially as the adoptive par- 
ents were her grandparents and she had 
been in their custody for the majority of 
the past three years. Shorter v. Reeves, 72 
Ark. App. 71, 32 S.W.3d 758 (2000). 

Cited: Cox v. Stayton, 273 Ark. 298, 
619 S.W.2d 617 (1981); In re J.L.T., 31 
Ark. App. 85, 788 S.W2d 494 (1990). 



9-9-213. Required residence of minor. 

A final decree of adoption shall not be issued and an interlocutory 
decree of adoption does not become final until the minor to be adopted, 
other than a stepchild of the petitioner, has lived in the home for at 
least six (6) months after placement by an agency or for at least six (6) 
months after the petition for adoption is filed. 



9-9-214 FAMILY LAW 64 

History. Acts 1977, No. 735, § 13; 
A.S.A. 1947, § 56-213; Acts 1999, No. 518, 
§ 1. 

CASE NOTES 

Analysis 289 S.W.2d 186 (1956) (decision under 

prior law). 
Issuance. ^ ~ , 

Subsequent Attack. Temporary Order. 

Temporary Order. Adoption decree by temporary order 

continued without any final decree of 

Issuance. adoption having been issued was accepted 

Evidence sustained court finding that as effecting a legal adoption under Arkan- 

the final order of adoption was properly sas law Dunn v> Richardson, 336 F. Supp. 

L S oo 6 o \i9S^oo V ' ,?n£ w 1 !, 258 Ark ' 1 | 6 ' 649 < W - D - Ark. 1972 ) (decision under prior 
522 S.W.2d 433 (1975) (decision under j. F 

prior law). Cited: Irvan v. Kizer, 286 Ark. 105, 689 

Subsequent Attack. S.W.2d 548 (1985); In re Perkins/Pollnow, 

Adoption decree was not subject to at- 300 Ark. 390, 779 S.W.2d 531 (1989); In re 

tack after child lived with the adoptive Milam, 27 Ark. App. 100, 766 S.W.2d 944 

parents for two years from the date of the (1989); Mayberry v. Flowers, 69 Ark. App. 

adoption. Graham v. Hill, 226 Ark. 258, 307, 12 S.W.3d 652 (2000). 

9-9-214. Appearance — Continuance — Disposition of petition. 

(a) The petitioner and the individual to be adopted shall appear at 
the hearing on the petition, unless the presence of either is excused by 
the court for good cause shown. 

(b) The court may continue the hearing from time to time to permit 
further observation, investigation, or consideration of any facts or 
circumstances affecting the granting of the petition. 

(c) If at the conclusion of the hearing the court determines that the 
required consents have been obtained or excused and the required 
period for the withdrawal of consent and withdrawal of relinquishment 
have passed and that the adoption is in the best interest of the 
individual to be adopted, it may (1) issue a final decree of adoption; or 
(2) issue an interlocutory decree of adoption which by its own terms 
automatically becomes a final decree of adoption on a day therein 
specified, which day shall not be less than six (6) months nor more than 
one (1) year from the date of issuance of the decree, unless sooner 
vacated by the court for good cause shown. 

(d) If the requirements for a decree under subsection (c) of this 
section have not been met, the court shall dismiss the petition and the 
child shall be returned to the person or entity having custody of the 
child prior to the filing of the petition. 

History. Acts 1977, No. 735, § 14; 
A.S.A. 1947, § 56-214; Acts 1991, No. 774, 
§ 4. 



65 



ADOPTION 



9-9-214 



RESEARCH REFERENCES 



Ark. L. Rev. Note, Strict Construction, 
Jurisdictional Requirements and the Ar- 
kansas Adoption Code: Martin v. Martin 



and a Missed Chance for Clarity, 49 Ark. 
L. Rev. 123. 



CASE NOTES 



Analysis 

Best Interest of the Child. 
Effective Date of Order. 
Petition Granted. 
Presence of Adopted Person. 
Standard of Review. 
Standing in Loco Parentis. 
Subsequent Hearing. 

Best Interest of the Child. 

Facts did not necessarily show adoption 
to be in the child's best interest. Dixon v. 
Dixon, 286 Ark. 128, 689 S.W.2d 556 
(1985). 

While keeping siblings together is a 
commendable goal and an important con- 
sideration as a general rule, it is but one 
factor that must be taken into account 
when determining the best interest of the 
child. Arkansas Dep't of Human Servs. v. 
Couch, 38 Ark. App. 165, 832 S.W.2d 265 
(1992). 

Putative father's failure to formally es- 
tablish paternity was not a major factor to 
be considered regarding the best interest 
of the child. In re B.L.S, 50 Ark. App. 155, 
901 S.W.2d 38 (1995). 

That attempted adoptive mother was on 
social security disability and drawing wel- 
fare benefits will not provide a basis for a 
change in custody. In re B.L.S, 50 Ark. 
App. 155, 901 S.W.2d 38 (1995). 

Effective Date of Order. 

Adoption decree is effective as of the 
date of the interlocutory order unless set 
aside for good reason at final hearing. A. v. 
B., 217 Ark. 844, 233 S.W.2d 629 (1950) 
(decision under prior law). 

Adoptive parent did not timely move to 
vacate temporary order of adoption. Toai 
Cong Pham v. Hanh My Truong, 291 Ark. 
442, 725 S.W.2d 569 (1987). 

Petition Granted. 

A probate court may grant a petition for 
adoption if it determines at the conclusion 
of a hearing that the required consents 
have been obtained or excused and the 



adoption is in the best interest of the child 
or individual to be adopted. Bemis v. Hare, 
19 Ark. App. 198, 718 S.W.2d 481 (1986). 

Presence of Adopted Person. 

Where the final decree of adoption re- 
cited "that all proper persons are before 
the court," it must be assumed the finding 
means that the children were present at 
the hearing. Brown v. Fleming, 266 Ark. 
814, 586 S.W2d 8 (Ct. App. 1979). 

Where the record was silent as to 
whether the child sought to be adopted 
was present at hearing, the court would 
indulge in the presumption that the court 
below had jurisdiction and acted correctly. 
Loveless v. May, 278 Ark. 127, 644 S.W2d 
261 (1983). 

Standard of Review. 

Supreme Court reviews probate pro- 
ceedings de novo and will not reverse a 
probate court's decision regarding the best 
interest of a child to be adopted unless it is 
clearly against the preponderance of the 
evidence, giving due regard to the oppor- 
tunity and superior position of the trial 
court to judge the credibility of witnesses. 
Personal observations of the court are 
entitled to even more weight in cases 
involving the welfare of a young child. In 
re Perkins/Pollnow, 300 Ark. 390, 779 
S.W2d 531 (1989); In re B.A.B., 40 Ark. 
App. 86, 842 S.W2d 68 (1992). 

Standing in Loco Parentis. 

Subsection (a) of this section is manda- 
tory and jurisdictional and could not be 
complied with unless persons standing in 
loco parentis to child were given notice of 
guardianship and adoption proceedings. 
Nelson v. Shelly, 268 Ark. 760, 600 S.W2d 
411 (Ct. App. 1980). 

Subsequent Hearing. 

After the natural father brought to the 
court's attention that the child at issue, 
who was seven years of age at the begin- 
ning of this process, was past the age of 
ten years at the time the trial was held, 
the probate judge properly scheduled a 



9-9-215 FAMILY LAW 66 

subsequent hearing at which he ques- Cited: In re Parsons, 302 Ark. 427, 791 

tioned the child and ascertained the S.W.2d 681 (1990); Mayberry v. Flowers, 
child's consent to be adopted. Reid v. 69 Ark. App. 307, 12 S.W.3d 652 (2000). 
Frazee, 72 Ark. App. 474, 41 S.W.3d 397 
(2001). 

9-9-215. Effect of decree of adoption. 

(a) A final decree of adoption and an interlocutory decree of adoption 
which has become final, whether issued by a court of this state or of any 
other place, have the following effect as to matters within the jurisdic- 
tion or before a court of this state: 

(1) Except with respect to a spouse of the petitioner and relatives of 
the spouse, to relieve the biological parents of the adopted individual of 
all parental rights and responsibilities, and to terminate all legal 
relationships between the adopted individual and his or her biological 
relatives, including his or her biological parents, so that the adopted 
individual thereafter is a stranger to his or her former relatives for all 
purposes. This includes inheritance and the interpretation or construc- 
tion of documents, statutes, and instruments, whether executed before 
or after the adoption is decreed, which do not expressly include the 
individual by name or by some designation not based on a parent and 
child or blood relationship. However, in cases where a biological or 
adoptive parent dies before a petition for adoption has been filed by a 
step-parent of the minor to be adopted the court may grant visitation 
rights to the parents of the deceased biological or adoptive parent of the 
child if such parents of the deceased biological or adoptive parent had 
a close relationship with the child prior to the filing of a petition for 
step-parent adoption, and if such visitation rights are in the best 
interests of the child. The foregoing provision shall not apply to the 
parents of a deceased putative father who has not legally established 
his paternity prior to the filing of a petition for adoption by a step- 
parent. For the purposes of this section, "step-parent" means an 
individual who is the spouse or surviving spouse of the biological or 
adoptive parent of a child but who is not a biological or adoptive parent 
of the child. 

(2) To create the relationship of parent and child between petitioner 
and the adopted individual, as if the adopted individual were a 
legitimate blood descendant of the petitioner, for all purposes including 
inheritance and applicability of statutes, documents, and instruments, 
whether executed before or after the adoption is decreed, which do not 
expressly exclude an adopted individual from their operation or effect. 

(b) An interlocutory decree of adoption, while it is in force, has the 
same legal effect as a final decree of adoption. If an interlocutory decree 
of adoption is vacated, it shall be as though void from its issuance, and 
the rights, liabilities, and status of all affected persons which have not 
become vested shall be governed accordingly. 

(c) Sibling visitation shall not terminate if the adopted child was in 
the custody of the Department of Human Services and had a sibling 



67 



ADOPTION 



9-9-215 



who was not adopted by the same family and before adoption the circuit 
court in the juvenile dependency-neglect or families in need of services 
case has determined that it is in the best interests of the siblings to 
continue visitation and has ordered visitation between the siblings to 
continue after the adoption. 

History. Acts 1977, No. 735, § 15; Amendments. The 2005 amendment 

1983, No. 324, § 2; 1985, No. 403, § 2; substituted "biological" for "natural" 

A.S.A. 1947, § 56-215; Acts 1995, No. 889, throughout (a)(1); and added (c). 
§ 1; 2005, No. 437, §§ 5, 6. 

RESEARCH REFERENCES 



U. Ark. Little Rock L.J. Legislation of 
the 1983 General Assembly, Family Law, 6 
U. Ark. Little Rock L.J. 624. 

Arkansas Law Survey, Saunders, Torts, 
7 U. Ark. Little Rock L.J. 259. 



Survey — Family Law, 10 U. Ark. Little 
Rock L.J. 577. 



CASE NOTES 



Analysis 

Applicability. 

Disinterment. 

Exclusions Permitted. 

Finality of Decree. 

Inheritance. 

Petition Denied. 

Termination of Legal Relationships. 

— In General. 

— Grandparents . 

Wrongful Death Action. 

Applicability. 

The law in effect at the time of an 
ancestor's death controls the issue of in- 
heritance, not the law in effect at the time 
of adoption; this section applies where the 
death occurs after this section's 1977 en- 
actment, even if the adoption occurred 
before 1977. Wheeler v. Myers, 330 Ark. 
728, 956 S.W2d 863 (1997). 

Because adoption, inheritance laws 
were not intended to modify the estab- 
lished meaning of terms used in deeds, a 
trial court did not err in refusing to con- 
sider § 56-109 (repealed) when determin- 
ing whether or not an adopted child was 
entitled to a remainder interest in a deed 
that used the word "heirs." Brown v. 
Johnson, 81 Ark. App. 60, 97 S.W3d 924 
(2003). 

Disinterment. 

Appellate court overruled appellants' 
assertion that the adoptive father's per- 



mission was not needed to disinter the 
decedent's remains, because either the 
adoptive father's consent was necessary or 
in cases where there was disagreement, 
the matter must be submitted for a judi- 
cial decision, when for all intents and 
purposes, the adoptive father was the de- 
cedent's legitimate blood descendent. 
Tozer v. Warden, 101 Ark. App. 396, 278 
S.W3d 134 (2008). 

Exclusions Permitted. 

Even though this section treats adopted 
persons as blood descendants for "all pur- 
poses," it nevertheless allows documents 
or instruments to expressly exclude an 
adopted individual from their operation. 
Sides v. Beene, 327 Ark. 401, 938 S.W.2d 
840 (1997). 

Finality of Decree. 

Adoptive parent who did not timely ap- 
peal a temporary order of adoption did 
not, under ARCP 41, have an absolute 
right to dismiss his petition for adoption 
anytime prior to the entry of a final order 
of adoption. Toai Cong Pham v. Hanh My 
Truong, 291 Ark. 442, 725 S.W2d 569 
(1987). 

Once an interlocutory decree of adop- 
tion is entered, it is construed as a final 
decree if no subsequent hearing is re- 
quired by the terms of that decree; and the 
natural parent cannot withdraw consent 
after entry of the decree unless fraud, 
duress, or intimidation is shown. In re 



9-9-215 



FAMILY LAW 



68 



Milam, 27 Ark. App. 100, 766 S.W.2d 944 
(1989). 

Subsection (b) of this section provides, 
in the last sentence, that an interlocutory 
decree can be set aside. Dougan v. Gray, 
318 Ark. 6, 884 S.W.2d 239 (1994). 

Inheritance. 

Child adopted after execution of will 
stood in the position of a natural born 
child born subsequently to the execution 
of the will, and inherited accordingly. 
Grimes v. Jones, 193 Ark. 858, 103 S.W.2d 
359 (1937) (decision under prior law). 

Where adoption was void, adopted child 
could not inherit real estate but was en- 
titled to inherit personal property. Dean v. 
Brown, 216 Ark. 761, 227 S.W.2d 623 
(1950) (decision under prior law). 

Adopted son was heir of first adoptive 
father even though he was adopted by 
others prior to death of first adoptive 
father. Hawkins v. Hawkins, 218 Ark. 423, 
236 S.W.2d 733 (1951) (decision under 
prior law). 

Adopted son held not "heir of the body" 
of deceased foster parent. Davis v. Davis, 
219 Ark. 623, 243 S.W.2d 739 (1951) (de- 
cision under prior law). 

Children adopted by decedent shortly 
before his death were entitled to inherit 
from him even though the final decree was 
not entered during his lifetime. Williams 
v. Nash, 247 Ark. 135, 445 S.W.2d 69 
(1969) (decision under prior law). 

A final decree of adoption must be en- 
tered in this state if an adopted child is to 
inherit at all from his adoptive parents, as 
inheritance under the "virtual adoption" 
theory is unknown to the law of this 
jurisdiction. Wilks v. Langley, 248 Ark. 
227, 451 S.W.2d 209 (1970) (decision un- 
der prior law). 

The law in effect at the time of the death 
of the adopted child is controlling on mat- 
ters of inheritance; thus, under this sec- 
tion, the heirs of the adoptive parents 
inherit to the exclusion of the blood rela- 
tives. In re Estate of Caisson, 289 Ark. 
216, 710 S.W2d 211 (1986). 

Petition Denied. 

Circuit court did not err in denying the 
adoption petition because it was the moth- 
er's burden to present credible evidence to 
convince the circuit judge that adoption 
was in the best interest of the child, and 
considering the circuit court's determina- 



tion that the effect of this section was 
speculative and that the mother's allega- 
tions against the father could be afforded 
no weight, she failed to meet this burden. 
There was no corroborating testimony or 
evidence as to the mother's allegations 
regarding the father's use of alcohol and 
drugs or the father's abuse of his children, 
other than what the mother told her 
mother. In re Adoption of M.K.C., — Ark. 
— , — S.W3d — , 2009 Ark. LEXIS 257 
(Mar. 5, 2009). 

Termination of Legal Relationships. 

Trial court erred in holding that before 
appellant's adoption of his wife's adopted 
child could go forward, appellant was re- 
quired to either obtain the consent of the 
child's biological father or produce an or- 
der demonstrating that the biological fa- 
ther's parental rights had been termi- 
nated because by operation of law, the 
former adoption decree forever severed 
and held for naught the biological father's 
rights, responsibilities, and legal relation- 
ship with the child. In re Adoption of 
H.L.M., 99 Ark. App. 115, 257 S.W.3d 587 
(2007). 

Arkansas Supreme Court has inter- 
preted the statute as an expression of 
public policy favoring a complete sever- 
ance of the relationship between an 
adopted child and his or her biological 
family in order to further the best interest 
of the child. In re Adoption of H.L.M., 99 
Ark. App. 115, 257 S.W3d 587 (2007). 

— In General. 

An adoption not only terminates all 
legal relationships between the adopted 
individual and his natural parents and 
legally makes him a stranger to them, it 
also commands that all courts recognize 
that principle in construing all statutes. 
Webb v. Harvell, 563 F. Supp. 172 (WD. 
Ark. 1983). 

Section 9-27-34 1(c)(1) and subdivision 
(a)(1) of this section point to a public 
policy which, in determining what is in 
the child's best interest, favors a complete 
severing of the ties between a child and its 
biological family when he is placed for 
adoption. Suster v. Arkansas Dep't of Hu- 
man Servs., 314 Ark. 92, 858 S.W2d 122 
(1993); Vice v. Andrews, 328 Ark. 573, 945 
S.W2d 914 (1997). 

— Grandparents. 

Decree of adoption would terminate the 
relational status between adopted grand- 



69 



ADOPTION 



9-9-216 



children and their grandparents. Quarles 
v. French, 272 Ark. 51, 611 S.W.2d 757 
(1981). 

Paternal grandparents of adopted child 
were not entitled to obtain visitation 
privileges since this section terminates all 
legal relationships so that the adopted 
infant is for all legal purposes a stranger 
to his former relatives; it is unquestion- 
ably within the province of the legislature 
to decide that the reasons favoring the 
solidarity of the adoptive family outweigh 
those favoring the grandparents and other 
blood kin who are related to the child 
through its deceased parent. Wilson v. 
Wallace, 274 Ark. 48, 622 S.W.2d 164 
(1981); Woodson v. Kilcrease, 7 Ark. App. 
252, 648 S.W2d 72 (1983). 

When the public policy favoring main- 
tenance of grandparental ties collides 
with the stronger public policy to 
strengthen the relationships within adop- 
tive families, the former must give way to 
the latter. Woodson v. Kilcrease, 7 Ark. 
App. 252, 648 S.W2d 72 (1983). 

A grandmother's visitation and custody 
rights were derivative of her daughter's 
parental rights, and, as a result, were 
terminated when her daughter's parental 
rights were terminated. Suster v. Arkan- 
sas Dep't of Human Servs., 314 Ark. 92, 
858 S.W.2d 122 (1993). 

The biological father's consent to an 
adoption terminated any rights of visita- 
tion that his mother might claim. Vice v. 



Andrews, 328 Ark. 573, 945 S.W.2d 914 
(1997). 

The maternal grandmother was not en- 
titled to visitation with two children 
adopted by the natural father's new wife 
under subsection (a)(1) of this section, 
because she was barred from filing her 
custody/visitation action by the one-year 
statute of limitations found in § 9-9- 
216(b) as she clearly was challenging the 
effect of the adoption decree by claiming 
visitation rights under the former statute; 
a contrary result was not required by the 
fact that the grandmother was not given 
notice of the adoption proceeding as re- 
quired by § 9-9-2 12(f). Tate v. Bennett, 
341 Ark. 829, 20 S.W3d 370 (2000). 

Wrongful Death Action. 

The omission of any provision for an 
adoptive parent's death does not show a 
legislative intent to deny an adopted child 
the right to assert a cause of action for the 
death of the adoptive parent. Moon Dis- 
tribs., Inc. v. White, 245 Ark. 627, 434 
S.W2d 56 (1968) (decision under prior 
law). 

Where the decedent's natural-born 
child had been adopted, the child was no 
longer the child of the decedent and was 
not one of the beneficiaries authorized to 
recover for the wrongful death of the de- 
cedent. Webb v. Harvell, 563 F. Supp. 172 
(WD. Ark. 1983). 

Cited: Irvan v. Kizer, 286 Ark. 105, 689 
S.W2d 548 (1985); In re Perkins/Pollnow, 
300 Ark. 390, 779 S.W2d 531 (1989). 



9-9-216. Appeal from and validation of adoption decree. 

(a) An appeal from any final order or decree rendered under this 
subchapter may be taken in the manner and time provided for appeal 
from a judgment in a civil action. 

(b) Subject to the disposition of an appeal, upon the expiration of one 
(1) year after an adoption decree is issued, the decree cannot be 
questioned by any person including the petitioner, in any manner upon 
any ground, including fraud, misrepresentation, failure to give any 
required notice, or lack of jurisdiction of the parties or of the subject 
matter unless, in the case of the adoption of a minor, the petitioner has 
not taken custody of the minor or, in the case of the adoption of an adult, 
the adult had no knowledge of the decree within the one-year period. 



History. Acts 1977, No. 735, § 16; 
A.S.A. 1947, § 56-216. 

Publishers Notes. The Arkansas Su- 
preme Court, in its per curiam of Novem- 
ber 22, 1982, observed that some confu- 



sion exists among members of the bar as 
to the date of the final order for the 
purpose of appeal. The court stated: "In 
order to put an end to the confusion, we 
shall prospectively construe any decree of 



9-9-216 



FAMILY LAW 



70 



adoption to be a final decree, no matter 
whether it is interlocutory or final, if no 



subsequent hearing is required by the 
terms of that decree." 



RESEARCH REFERENCES 



Ark. L. Rev. Case Note, In re Adoption 
of Pollock: Arkansas Probate Court Juris- 



diction — A Question of Policy, 41 Ark. L. 
Rev. 677. 



CASE NOTES 



Analysis 

Construction. 
Collateral Attack. 
Finality of Decree. 
Fraud. 
Jurisdiction. 
Limitation of Actions. 
Res Judicata. 
Standing to Appeal. 

Construction. 

The one-year statute of limitations in 
subsection (b) of this section provides a 
special procedure which cannot be an- 
nulled by ARCP 41(a) or the savings stat- 
ute, § 16-56-126, which allows an action 
dismissed without prejudice to be refiled 
within one year of the dismissal. In re 
Martindale, 327 Ark. 685, 940 S.W.2d 491 
(1997). 

This section provides a maximum one- 
year time limit after which any action to 
set aside an adoption order is barred, but 
does not affect the 90 day limit set forth in 
Rule 60(a) of the Arkansas Rules of Civil 
Procedure and only serves to limit the 
time in which a probate court could act to 
set aside an order pursuant to Rule 60(c) 
of the Arkansas Rules of Civil Procedure. 
Mayberry v. Flowers, 69 Ark. App. 307, 12 
S.W.3d 652 (2000). 

Collateral Attack. 

In a collateral attack on a foreign adop- 
tion former section setting the time upon 
which an adoption becomes final did not 
apply; where the parent was not given 
notice of the adoption proceeding; the sec- 
tion did not begin to run until the parent 
discovered the identity of the adopting 
parties. Olney v. Gordon, 240 Ark. 807, 
402 S.W.2d 651 (1966) (decision under 
prior law). 

A petition to determine heirship filed by 
deceased's collateral heirs was a collateral 
attack on the order of adoption, which was 
not subject to collateral attack. Williams v. 



Nash, 247 Ark. 135, 445 S.W.2d 69 (1969) 
(decision under prior law). 

Probate court, in adoption proceedings, 
had no authority to grant visitation rights 
to grandmother and hence visitation por- 
tion of the adoption decree in excess of the 
court's authority or subject matter juris- 
diction and was void and subject to collat- 
eral attack. Poe v. Case, 263 Ark. 488, 565 
S.W.2d 612 (1978) (decision under prior 
law). 

Finality of Decree. 

Any decree of adoption is a final decree, 
no matter whether it is interlocutory or 
final, if no subsequent hearing is required 
by the terms of that decree. In re Adoption 
Orders, 277 Ark. 520, 642 S.W.2d 573 
(1982). 

Adoptive parent who did not timely ap- 
peal a temporary order of adoption did 
not, under ARCP 41, have an absolute 
right to dismiss his petition for adoption 
anytime prior to the entry of a final order 
of adoption. Toai Cong Pham v. Hanh My 
Truong, 291 Ark. 442, 725 S.W.2d 569 
(1987). 

Fraud. 

Where an order for the adoption of a 
minor child was entered in due form, the 
person adopting the child and all others 
claiming as his heirs were estopped to 
question the validity of the proceedings on 
the ground of fraud in its procurement, 
not found on the face of the record. Avery 
v. Avery, 160 Ark. 375, 255 S.W 18 (1923) 
(decision under prior law). 

Jurisdiction. 

Complaint, seeking to set aside adop- 
tion decree, was improperly brought in the 
chancery court when the probate court of 
the county granted the adoption. Cotten v. 
Hamblin, 233 Ark. 65, 342 S.W.2d 478 
(1961) (decision under prior law). 

Limitation of Actions. 

Former section barred plaintiffs peti- 
tion to vacate a final order of adoption of 



71 



ADOPTION 



9-9-216 



his former wife's natural child on proce- 
dural grounds brought four years after the 
issuance of the final order. Cottrell v. Cot- 
trell, 258 Ark. 116, 522 S.W.2d 433 (1975) 
(decision under prior law). 

Where a petition challenging an adop- 
tion was filed before this subchapter be- 
came effective, the trial court erred in 
applying the one-year statute of limita- 
tions under this section to the action 
rather than the two-year limitation under 
former section. Allton v. Sumter, 274 Ark. 
448, 625 S.W.2d 502 (1981). 

Where natural father was given no no- 
tice of the pending adoption, it would be a 
denial of due process to hold that the 
adoption decree was protected from chal- 
lenge after one year from its issuance. 
McKinney v. Ivey, 287 Ark. 300, 698 
S.W2d 506 (1985). 

The maternal grandmother was not en- 
titled to visitation with two children 
adopted by the natural father's new wife 
under § 9-9-215(a)(l), because she was 
barred from filing her custody/visitation 
action by the one-year statute of limita- 
tions found in subsection (b) of this section 
as she clearly was challenging the effect of 
the adoption decree by claiming visitation 
rights under the former statute; a con- 
trary result was not required by the fact 
that the grandmother was not given no- 
tice of the adoption proceeding as required 
by § 9-9-212(f). Tate v. Bennett, 341 Ark. 
829, 20 S.W.3d 370 (2000). 

It was error for the trial court to deny a 
motion to dismiss a petition for adoption 
without a hearing on the merits, notwith- 
standing that the motion was filed more 
than one year after the grant of a tempo- 
rary order of adoption, since there was a 
question of fact as to whether the peti- 
tioner had taken custody of the child. 
Coker v. Child Support Enforcement Unit, 
69 Ark. App. 293, 12 S.W3d 669 (2000). 

Failure to give a natural parent the 
required notice of an adoption proceeding 
in which the parent's parental rights were 
terminated allowed the parent to have the 
decree set aside after the expiration of the 
limitations period in subsection (b) of this 
section, even though the parent gained 
actual knowledge of the termination, al- 
beit after the fact, before expiration of the 
limitations period. Mayberry v. Flowers, 
347 Ark. 476, 65 S.W.3d 418 (2002). 

Trial court correctly focused on whether 
an adoptive father had taken custody of 



the children and found that, in addition to 
physical custody being with the adoptive 
father and biological mother, the adoptive 
father also assumed parental duties; thus, 
the biological father's petition to set aside 
the adoption decree, which was filed more 
than one year after the decree was en- 
tered, was time-barred under subsection 
(b) of this section. Carr v. Millar, 86 Ark. 
App. 292, 184 S.W3d 470 (2004). 

Res Judicata. 

In the father's second appeal seeking to 
set aside the adoption, it was clear that 
res judicata was applicable where: (1) the 
judgment entered by the trial court and 
subsequently affirmed by the appellate 
court finding no fraud and applying 
former statute of limitations was a final 
judgment on the merits; (2) there was no 
dispute that the circuit court had jurisdic- 
tion over the petition to annul the adop- 
tion; (3) the suit was fully contested and 
resulted in a final judgment that was 
appealed to the appellate court; (4) both 
suits involved the same issue, namely the 
annulment of the adoption decree; (5) both 
suits involved the exact same parties; and 
(6) there could have been no doubt that 
the father had every opportunity to chal- 
lenge the adoption based on the mental- 
defect claim in the father's first petition to 
annul the adoption. McAdams v. McAd- 
ams, 357 Ark. 591, 184 S.W3d 24 (2004). 

Standing to Appeal. 

State agency did not have the exclusive 
right to file an action for annulment of 
adoption proceeding, but the mother had 
an equal right to file suit. Gillen v. Edge, 
214 Ark. 776, 217 S.W2d 926 (1949) (de- 
cision under prior law). 

An outsider or stranger could not main- 
tain a petition to annul an order of adop- 
tion, but where petitioners occupied loco 
parentis relationship to the children, they 
could maintain the petition. Cotten v. 
Hamblin, 234 Ark. 109, 350 S.W2d 612, 
92 A.L.R.2d 811 (1961) (decision under 
prior law). 

Absent a loco parentis relationship 
grandparents had no legal interest in chil- 
dren's adoption which would permit them 
to challenge the adoption decree. In re 
Adoption of Hensley, 270 Ark. 1004, 607 
S.W2d 80 (Ct. App. 1980), overruled, Wil- 
son v. Wallace, 274 Ark. 48, 622 S.W2d 
164 (1981). 



9-9-217 FAMILY LAW 72 

Petitioner had no standing to set aside 317 Ark. 404, 878 S.W.2d 401 (1994), cert, 

the adoption decree and was procedurally denied, 514 U.S. 1065, 115 S. Ct. 1696, 

barred from proceeding where he waited 131 L. Ed. 2d 559 (1995). 

more than four years to file his motion to Cited: Martin v. Martin, 316 Ark. 765, 

set aside the decree. Summers v. Griffith, 875 S.W.2d 819 (1994). 

9-9-217. Confidentiality of hearings and records. 

(a) Notwithstanding any other law concerning public hearings and 
records: 

(1) All hearings held in proceedings under this subchapter shall be 
held in closed court without admittance of any person other than 
essential officers of the court, the parties, their witnesses, counsel, 
persons who have not previously consented to the adoption but are 
required to consent, and representatives of the agencies present to 
perform their official duties. 

(2)(A) Adoption records shall be closed, confidential, and sealed 
unless authority to open them is provided by law or by order of the 
court for good cause shown. 

(B)(i) When an adoption is filed or heard pursuant to § 9-27-301 et 
seq., any portion of the court file relating to the adoption shall be 
maintained separately from the file of other pending juvenile matters 
concerning the juvenile who is the subject of the adoption or the 
family of the juvenile. 

(ii) Once final disposition is made in the adoption proceedings, the 
adoption file shall be transferred from the clerk who is the custodian 
of juvenile records to the clerk who is the custodian of records. 

(iii) The entry of the adoption decree will be entered by the clerk in 
the book containing adoption records. 

(iv) The clerk shall assign the file a docket number, shall prepare 
an application for a new birth record as provided in this section, and 
shall maintain the file as if the case had originated as an adoption 
case. 

(v) No filing fee shall be assessed by the clerk upon the transfer 
and creation of the new adoption file. 

(vi) Any adoption record shall be handled as provided in this 
section. 

(C)(i) In the event an adoption record is randomly selected to be 
audited for determination of compliance with requirements found in 
federal laws pertaining to periodic and dispositional review of foster 
care cases, the Administrator of Adoptions of the Department of 
Human Services is authorized to open the file notwithstanding any 
section in this subchapter prohibiting disclosure of adoption records. 

(ii) It shall be the responsibility of the administrator to procure 
and provide from this file all records pertinent to the federal require- 
ments under review. 

(iii) The remainder of the record shall remain sealed. Such por- 
tions of the record that may be removed shall be returned to the 
sealed file upon completion of the federal audit. 



73 ADOPTION 9-9-217 

(iv) No one shall be permitted to review the removed portion of the 
record except in an official capacity, and, except for uses required by 
the federal audit in compliance with state and federal statutes and 
regulations, such a person shall be bound to keep the contents of such 
records confidential. 

(D)(i) In the event the Department of Human Services has the 
opportunity to enhance its federal funding by a review of its adop- 
tions records, then the administrator is authorized to open such files 
notwithstanding any section in this subchapter. 

(ii) It shall be the responsibility of the administrator to procure 
and provide from this file all records pertinent to the review. 

(hi) The remainder of the record shall remain sealed. 

(iv) The portion of the record that may be removed shall be 
returned to the sealed file upon completion of the review. 

(v) No one shall be permitted to review the removed portion of the 
record except in an official capacity, and, except for uses required to 
provide for the enhancement of possible federal funding in compli- 
ance with state and federal statutes and regulations, such a person 
shall be bound to keep the contents of such records confidential. 

(E)(i) In the event that an adoptive family contacts the department 
and indicates a desire for the placement of a subsequent child and no 
more than five (5) years have lapsed since the adoption file has been 
sealed, the department is authorized to unseal the adoption file 
notwithstanding any section in this subchapter. 

(ii) It shall be the responsibility of the administrator to remove the 
home study from the file and make a copy of the home study. 

(iii) The remainder of the file shall remain sealed. 

(iv) The administrator shall return the home study to the file, 
which shall then be resealed. 

(v) The department shall be permitted to use a copy of the original 
home study. 

(vi) The adoptive family shall be permitted to use a copy of the 
original home study with a petition to adopt a subsequent child from 
the department if the original home study is accompanied by an 
update. 

(b) The provisions of this section shall not prohibit the disclosure of 
information pursuant to § 9-9-501 et seq. 

(c) All papers and records pertaining to adoptions prior to May 19, 
1986, are declared to be confidential and shall be subject to disclosure 
only pursuant to this section. 

(d)(1) All records of any adoption finalized in this state shall be 
maintained for ninety-nine (99) years by the agency, person, entity, or 
organization that handled the adoption. 

(2) If the agency, person, entity, or organization that handled the 
adoption ceases to function, all adoption records shall be transferred to 
the department or another licensed agency within this state with notice 
to the department. 



9-9-218 FAMILY LAW 74 

History. Acts 1986 (2nd Ex. Sess.), No. the repeal, by Acts 1985, No. 957, of Acts 

23, §§ 2, 3; A.S.A. 1947, §§ 56-223, 56- 1977, No. 735, § 17, as amended by Acts 

224; Acts 1993, No. 758, § 3; 1999, No. 1985, Nos. 423 and 673, was an obvious 

945, §§ 1, 2; 2003, No. 650, § 4; 2003, No. error causing confusion as to the confiden- 

1166, § 1; 2005, No. 1685, § 2. tiality of adoption proceedings and 

A.C.R.C. Notes. Ark. Const., Amend. records> and further provided that it was 

80 adopted by voter referendum and ef- ^ of Actg 19g6 (2nd Ex g 

fective July 1, 2001, abolished chancery XT „ n r , ., . . „ A ' 

courts and established circuit courts as ^V^oTf ^ P ro ™* of ^ s 

the trial courts of original jurisdiction. 1977 > No. 735, § 17, as amended by Acts 

The jurisdiction of the circuit courts now 1985 > Nos - 423 and 673 > Wlth the addition 

includes "all matters previously cogni- of a provision to recognize disclosures of 

zable by Circuit, Chancery, Probate and adoption information pursuant to Acts 

Juvenile Court...." 1985, No. 957. 

Publisher's Notes. Acts 1986 (2nd Ex. Amendments. The 2005 amendment 

Sess.), No. 23, § 1, provided, in part, that added (a)(2)(E). 

RESEARCH REFERENCES 

A.L.R. Restricting access to judicial Legislation, 2003 Arkansas General As- 

records of concluded adoption proceed- sembly, Family Law, Uniform Adoption 

ings. 103 A.L.R.5th 255. Act, 26 U. Ark. Little Rock L. Rev. 408. 

U. Ark. Little Rock L. Rev. Survey of 

CASE NOTES 

Appeals. Cited: Arkansas Dep't of Human 
Although this subchapter does not gov- Servs. v. Hardy, 316 Ark. 119, 871 S.W.2d 
ern appeals of adoption cases, the court 352 (1994); Arkansas Best Corp. v. Gen- 
has closed records in adoption cases fol- eral Elec. Capital Corp., 317 Ark. 238, 878 
lowing the spirit of this section. In re S.W.2d 708 (1994); Dougan v. Gray, 318 
K.F.H., 310 Ark. 53, 834 S.W.2d 647 A rk. 6, 884 S.W.2d 239 (1994). 
(1992). 

9-9-218. Recognition of foreign decrees affecting adoption. 

A decree of court terminating the relationship of parent and child or 
establishing the relationship by adoption issued pursuant to due 
process of law by a court of any other jurisdiction within or without the 
United States shall be recognized in this state. The rights and obliga- 
tions of the parties as to matters within the jurisdiction of this state 
shall be determined as though the decree were issued by a court of this 
state. 

History. Acts 1977, No. 735, § 18; 
A.S.A. 1947, § 56-218. 

9-9-219. Application for new birth record. 

Upon entry of a final decree of adoption or an interlocutory decree of 
adoption that does not require a subsequent hearing, the clerk of the 
court shall prepare an application for a birth record in the new name of 
the adopted individual and forward the application to the appropriate 
vital statistics office of the place, if known, where the adopted indi- 
vidual was born and forward a copy of the decree to the Division of Vital 



75 ADOPTION 9-9-220 

Records of the Department of Health for statistical purposes. The 
division may issue a birth certificate for any child born in a place whose 
law does not provide for the issuance of a substituted certificate. 

History. Acts 1977, No. 735, § 19; quent hearing" for "Within thirty (30) 

A.S.A. 1947, § 56-219; Acts 2007, No. 539, days after an adoption decree becomes 

§ 5. final," deleted "Department of Health" 

Amendments. The 2007 amendment preceding "Division of Vital," inserted "of 

substituted "Upon entry of a final decree the Division of Health of the Department 

of adoption or an interlocutory decree of of Health and Human Services," and 

adoption that does not require a subse- made a minor punctuation change. 

9-9-220. Relinquishment and termination of parent and child 
relationship. 

(a) With the exception of the duty to pay child support, the rights of 
a parent with reference to a child, including parental right to control 
the child or to withhold consent to an adoption, may be relinquished 
and the relationship of parent and child terminated in or prior to an 
adoption proceeding as provided in this section. The duty of a parent to 
pay child support shall continue until an interlocutory decree of 
adoption is entered. 

(b) All rights of a parent with reference to a child, including the right 
to receive notice of a hearing on a petition for adoption, may be 
relinquished and the relationship of parent and child terminated by a 
writing, signed by an adult parent, subject to the court's approval. 

If the parent is a minor, the writing shall be signed by a guardian ad 
litem who is appointed to appear on behalf of the minor parent for the 
purpose of executing such a writing. The signing shall occur in the 
presence of a representative of an agency taking custody of the child, or 
in the presence of a notary public, whether the agency is within or 
without the state, or in the presence and with the approval of a judge of 
a court of record of this state or any other state in which the minor was 
present at the time it was signed. The relinquishment shall be executed 
in the same manner as for a consent to adopt under § 9-9-208. 

(1)(A) The relinquishment may be withdrawn within ten (10) calen- 
dar days, or, if a waiver of the ten-day period is elected under 
§ 9-9-220(b)(3), five (5) calendar days after it is signed or the child is 
born, whichever is later. 

(i) Notice of withdrawal shall be given by filing an affidavit with 
the probate division clerk of the circuit court in the county designated 
by the writing as the county in which the guardianship petition will 
be filed if there is a guardianship, or where the petition for adoption 
will be filed, if there is no guardianship. If the ten-day period, or, if a 
waiver of the ten-day period is elected under subdivision (b)(3) of this 
section, the five-day period ends on a weekend or legal holiday, the 
person may file the affidavit the next working day. 

(ii) No fee shall be charged for the filing of the affidavit. 
(B) The relinquishment shall state that the parent has this right of 
withdrawal and shall provide the address of the probate division clerk 



9-9-220 FAMILY LAW 76 

of the circuit court in which the guardianship will be filed if there is a 
guardianship, or where the petition for adoption will be filed if there is 
no guardianship; or 

(2) In any other situation, if notice of the adoption proceeding has 
been given to the parent and the court finds, after considering the 
circumstances of the relinquishment and the continued custody by the 
petitioner, that the best interest of the child requires the granting of the 
adoption. 

(3) The relinquishment shall state that the person may waive the 
ten-day period for the withdrawal of relinquishment for an adoption 
and to elect to limit the maximum time for the withdrawal of relin- 
quishment for an adoption to five (5) days. 

(c) In addition to any other proceeding provided by law, the relation- 
ship of parent and child may be terminated by a court order issued 
under this subchapter on any ground provided by other law for 
termination of the relationship, or on the following grounds: 

(1) Abandonment as denned in § 9-9-202(7). 

(2) Neglect or abuse, when the court finds the causes are irremedi- 
able or will not be remedied by the parent. 

(A) If the parents have failed to make reasonable efforts to remedy 
the causes and such failure has occurred for twelve (12) months, such 
failure shall raise the rebuttable presumption that the causes will not 
be remedied. 

(B) If the parents have attempted to remedy the causes but have 
failed to do so within twelve (12) months, and the court finds there is 
no reasonable likelihood the causes will be remedied by the eigh- 
teenth month, the failures shall raise the rebuttable presumption 
that the causes will not be remedied. 

(3) That in the case of a parent not having custody of a child, his or 
her consent is being unreasonably withheld contrary to the best 
interest of the child. 

(d) For the purpose of proceeding under this subchapter, a decree 
terminating all rights of a parent with reference to a child or the 
relationship of parent and child issued by a court of competent 
jurisdiction in this or any other state dispenses with the consent to 
adoption proceedings of a parent whose rights or parent and child 
relationship are terminated by the decree and with any required notice 
of an adoption proceeding other than as provided in this section. 

(e) A petition for termination of the relationships of parent and child 
made in connection with an adoption proceeding may be made by: 

(1) Either parent if termination of the relationship is sought with 
respect to the other parent; 

(2) The petitioner for adoption, the guardian of the person, the legal 
custodian of the child, or the individual standing in parental relation- 
ship to the child or the attorney ad litem for the child; 

(3) An agency; or 

(4) Any other person having a legitimate interest in the matter. 
(f)(1) The petition shall be filed and service obtained according to the 

Arkansas Rules of Civil Procedure. 



77 



ADOPTION 



9-9-220 



(2) Before the petition is heard, notice of the hearing and the 
opportunity to be heard shall be given the parents of the child, the 
guardian of the child, the person having legal custody of the child, a 
person appointed to represent any party in this proceeding, and any 
person granted rights of care, control, or visitation by a court of 
competent jurisdiction. 

(g) Notwithstanding the provisions of subsection (b) of this section, a 
relinquishment of parental rights with respect to a child executed 
under this section may be withdrawn by the parent, and a decree of a 
court terminating the parent-child relationship under this section may 
be vacated by the court upon motion of the parent if the child is not on 
placement for adoption and the person having custody of the child 
consents in writing to the withdrawal or vacation of the decree. 



History. Acts 1977, No. 735, § 20; 
1985, No. 879, §§ 2-4; A.S.A. 1947, § 56- 
220; Acts 1991, No. 774, § 5; 1991, No. 
1214, § 2; 1995, No. 1184, § 22; 1995, No. 
1284, § 2; 1995, No. 1335, § 6; 1997, No. 
1227, § 15; 1999, No. 518, § 2; 1999, No. 
945, § 3; 2001, No. 1779, § 1; 2003, No. 
1185, § 8; 2003, No. 1743, § 1; 2009, No. 
219, § 1; 2009, No. 230, § 2. 

A.C.R.C. Notes. Ark. Const., Amend. 
80, adopted by voter referendum and ef- 
fective July 1, 2001, abolished chancery 
courts and established circuit courts as 
the trial courts of original jurisdiction. 
The jurisdiction of the circuit courts now 



includes "all matters previously cogni- 
zable by Circuit, Chancery, Probate and 
Juvenile Court...." 

Amendments. The 2009 amendment 
by No. 219 rewrote (c)(1). 

The 2009 amendment by No. 230, in (b), 
inserted "or, if a waiver of the ten-day 
period is elected under § 9-9-220(b)(3), 
five (5) calendar days" in (b)(1)(A), in- 
serted "division" in (b)(l)(A)(i) and 
(b)(1)(B), inserted "or, if a waiver of the 
ten-day period is elected under subdivi- 
sion (b)(3) of this section, the five-day 
period" in (b)(l)(A)(i), inserted (b)(3), and 
made related changes. 



RESEARCH REFERENCES 



A.L.R. Parents' mental illness or men- 
tal deficiency as ground for termination of 
parental rights — Issues concerning 
guardian ad litem and counsel. 118 
A.L.R.5th 561. 

Parents' mental illness or mental defi- 
ciency as ground for termination of paren- 
tal rights — Applicability of Americans 
With Disabilities Act. 119 A.L.R.5th 351. 

Parents' mental illness or mental defi- 
ciency as ground for termination of paren- 
tal rights — Evidentiary issues. 122 
A.L.R.5th 337. 



U. Ark. Little Rock L.J. Survey — 
Family Law, 11 U. Ark. Little Rock L.J. 
215. 

Survey, Family Law, 13 U. Ark. Little 
Rock L.J. 369. 

U. Ark. Little Rock L. Rev. Survey of 
Legislation, 2001 Arkansas General As- 
sembly, Family Law, 24 U. Ark. Little 
Rock L. Rev. 483. 

Annual Survey of Caselaw, Family Law, 
26 U. Ark. Little Rock L. Rev. 913. 



CASE NOTES 



In General. 

Construction. 

Custody. 



Analysis 



Jurisdiction. 

Revocation. 

Support. 

Termination by Court Order. 

Unreasonable Withholding of Consent. 



9-9-220 



FAMILY LAW 



78 



In General. 

The natural relationship between par- 
ent and child is subject to absolute sever- 
ance in an adoption proceeding; however, 
the courts are inclined to favor the main- 
taining of the natural relationship when 
the adoption is sought without the consent 
of a parent and against his or her protest. 
Lindsey v. Ketchum, 10 Ark. App. 128, 661 
S.W.2d 453 (1983). 

Father was not unfit simply because he 
was incarcerated, and there was no evi- 
dence that he posed a risk to his son, 
rather, evidence showed that he pur- 
chased clothing for his son before he was 
born and had consistently sought contact 
with his son even while incarcerated, 
which were actions consistent with a par- 
ent who was making a good-faith effort to 
discharge his parental duties; there were 
no fact showing that the child would suffer 
any untoward effect by allowing him to 
establish a relationship with his father, 
and there was no evidence showing that 
the child would be adversely affected by 
knowledge of or association with his fa- 
ther, thus, the trial court's order granting 
the guardian's adoption petition and ter- 
minating the father's rights was reversed. 
Henderson v. Callis, 97 Ark. App. 163, 245 
S.W.3d 174 (2006). 

Construction. 

Section 9-9-208 and this section are 
mutually exclusive, in that they address 
separate methods by which a child may be 
adopted and provide different means by 
which the relinquishment of consent or 
direct consent may be withdrawn. In re 
Parsons, 302 Ark. 427, 791 S.W.2d 681 
(1990). 

Sections 9-9-208 and 9-9-209 are mutu- 
ally exclusive from this section in obtain- 
ing the relinquishment of consent or con- 
sent to an adoption, and either one or the 
other should be employed based on the 
applicable circumstances of the adoption; 
and the use of both relinquishment of 
parental rights and consent provisions in 
the affidavit and consent of natural 
mother document was in contravention of 
these sections. In re Parsons, 302 Ark. 
427, 791 S.W.2d 681 (1990). 

Local rule imposed by chancellor blend- 
ing the different statutory consent re- 
quirements of § 9-9-208 and this section 
was inappropriate. In re Parsons, 302 Ark. 
427, 791 S.W.2d 681 (1990). 



Subdivisions (c)(2)(A) and (B) of this 
section were not effective on the date that 
the father's child support order was en- 
tered and, therefore, the statute was not 
applicable to the father's case; the legisla- 
ture intended for those non-custodial par- 
ents whose child support orders were en- 
tered after August 13, 2001, to be affected, 
such that the statute was meant to apply 
prospectively from August 31, 2001, not 
retroactively to May 31, 2001, the date the 
divorce decree was entered. Stroud v. 
Cagle, 87 Ark. App. 95, 189 S.W.3d 76 
(2004). 

Custody. 

It was not unconscionable for the trial 
court to consider a putative father as "a 
parent not having custody" within the 
meaning of subdivision (c)(3) of this sec- 
tion, despite the putative father's conten- 
tion that he should be considered as a 
noncustodial parent because he surren- 
dered his child pursuant to a court order 
rather than voluntarily. Wineman v. 
Brewer, 280 Ark. 527, 660 S.W.2d 655 
(1983). 

Jurisdiction. 

In a proceeding seeking to set aside a 
prior divorce decree adjudicating a pur- 
ported father the legal parent of a minor 
child, a trial court lacked authority to 
terminate the father's parental rights be- 
cause the action did not concern adoption. 
Hudson v. Kyle, 352 Ark. 346, 101 S.W.3d 
202 (2003). 

Revocation. 

Where mother of child consented to ap- 
pointment of state agency as guardian for 
child, and later on same day attempted to 
revoke authority, mother was not entitled 
to writ of habeas corpus but must file a 
complaint in probate court to set aside 
prior order. Haller v. Ratcliffe, 215 Ark. 
628, 221 S.W2d 886 (1949) (decision un- 
der prior law). 

Even in the case of a final adoption 
decree, consent to adopt may be with- 
drawn upon a proper showing of fraud, 
duress or intimidation. Dale v. Franklin, 
22 Ark. App. 98, 733 S.W2d 747 (1987). 

Where both relinquishment of parental 
rights and consent provisions were con- 
tained in the same document purporting 
to sanction the adoption of a minor child 
and the trial court included the ten day 
right to withdraw provision in its decree of 



79 



ADOPTION 



9-9-220 



adoption, the document was, in the main, 
a relinquishment of parental rights as 
embodied in this section and natural 
mother's revocation of her relinquishment 
five days after she signed the affidavit was 
effective. In re Parsons, 302 Ark. 427, 791 
S.W.2d 681 (1990). 

Support. 

Where, at the time of appellee's execu- 
tion of the relinquishment of parental 
rights, the law did not provide that a 
parent had a continuing duty of support 
until the entry of an interlocutory decree 
of adoption, it was not error for the chan- 
cellor to deny appellant's petition for child 
support from appellee. Office of Child Sup- 
port Enforcement v. Lawrence, 57 Ark. 
App. 300, 944 S.W.2d 566 (1997), over- 
ruled in part, Hudson v. Kyle, 352 Ark. 
346, 101 S.W.3d 202 (2003). 

Adoption decree in favor of the mother 
and the adoptive father was proper be- 
cause the biological father voluntarily, 
willfully, arbitrarily, and without ad- 
equate excuse failed to pay child support 
in excess of one year. The record further 
revealed that he had the opportunity to 
"cure" his failure to pay child support 
pursuant to subdivision (c)(2)(A) of this 
section, but he chose not to do so. Powell v. 
Lane, 375 Ark. 178, 289 S.W.3d 440 
(2008). 

Termination by Court Order. 

This section does not require a separate 
petition for termination of parental rights 
but allows the parental relationship to be 
terminated by a court order in connection 
with an adoption proceeding if the requi- 
site grounds are satisfied. Wineman v. 
Brewer, 280 Ark. 527, 660 S.W.2d 655 
(1983). 

While the primary consideration in 
adoption proceeding is the welfare of the 
child, this does not mean that courts can 
sever the parental rights of nonconsenting 
parents and order adoption merely be- 
cause the adoptive parents might be able 
to provide a better home. Lindsey v. 
Ketchum, 10 Ark. App. 128, 661 S.W.2d 
453 (1983). 

While the primary consideration is the 
welfare of the child, the court cannot sever 
the parental rights of nonconsenting par- 
ents and order adoption merely because 
the adoptive parents might be able to 
provide a better home. In re Milam, 27 
Ark. App. 100, 766 S.W.2d 944 (1989). 



Termination of a father's parental 
rights to allow the adoption of his child by 
the stepfather was proper where the fa- 
ther, although paying some of the overdue 
child support once the adoption proceed- 
ings were commenced, made no effort to 
see the child because subsection (a) of this 
section not only required that an absent a 
parent support his or her child, it also 
required that the absent parent establish 
a relationship with the child. Roberts v. 
Brown, 103 Ark. App. 1, 285 S.W.3d 716 
(2008). 

Unreasonable Withholding of Con- 
sent. 

Evidence sufficient to find that parent 
unreasonably withheld consent to child's 
adoption. Lindsey v. Ketchum, 10 Ark. 
App. 128, 661 S.W.2d 453 (1983); In re 
Titsworth, 11 Ark. App. 197, 669 S.W2d 8 
(1984). 

Psychological studies of the natural fa- 
ther and evidence of his antisocial behav- 
ior prior to the birth of his child were 
admissible in determining whether he un- 
reasonably withheld his consent to adop- 
tion contrary to the best interests of the 
child. In re K.M.C., 333 Ark. 95, 62 Ark. 
App. 95, 969 S.W2d 197 (1998). 

Record contained no showing that a 
father unreasonably withheld his consent 
to an adoption by a guardian where the 
father had no obligation to consent merely 
because he was incarcerated or because 
the guardian did not want to communi- 
cate or have the child exposed to him; 
further, even if the father had consented 
to the guardianship, he would not have 
forfeited his parental rights in so doing 
and, thus, the trial court's order granting 
the guardian's adoption petition and ter- 
minating the father's rights was reversed. 
Henderson v. Callis, 97 Ark. App. 163, 245 
S.W3d 174 (2006). 

Cited: Temple v. Tucker, 277 Ark. 81, 
639 S.W.2d 357 (1982); Loveless v. May, 
278 Ark. 127, 644 S.W2d 261 (1983); Lind- 
sey v. Ketchum, 10 Ark. App. 128, 661 
S.W.2d 453 (1983); In re Proposed Local 
Rules, 284 Ark. 133, 682 S.W2d 452 
(1984); Corley v. Arkansas Dep't of Human 
Servs., 46 Ark. App. 265, 878 S.W2d 430 
(1994); Vice v. Andrews, 328 Ark. 573, 945 
S.W.2d 914 (1997); Batiste v. Ark. Dep't of 
Human Servs., 361 Ark. 46, 204 S.W3d 
521 (2005). 



9-9-221 FAMILY LAW 80 

9-9-221. Uniformity of interpretation. 

This subchapter shall be so interpreted and construed as to effectuate 
its general purpose to make uniform the law of those states which enact 
it. 

History. Acts 1977, No. 735, § 21; 
A.S.A. 1947, § 56-221. 

RESEARCH REFERENCES 

U. Ark. Little Rock L.J. Arkansas 
Law Survey, Waddell, Family Law, 7 U. 
Ark. Little Rock L.J. 229. 

9-9-222. Repeal and effective date. 

(a) The following acts and laws and parts of laws in conflict herewith 
are repealed as of the effective date of this subchapter: 

(1) Acts 1947, No. 369; 

(2) Acts 1953, No. 254; 

(3) Acts 1953, No. 265; 

(4) Acts 1969, No. 303, § 17. 

(b) Any adoption or termination proceedings pending on the effective 
date of this subchapter are not affected thereby. 

History. Acts 1977, No. 735, § 22. was signed by the Governor on March 24, 

Publisher's Notes. Acts 1977, No. 735 1977, and took effect on July 6, 1977. 

9-9-223. Termination of rights of nonparental relatives. 

Except as provided in this subchapter with regard to parental rights, 
any rights to a child which a nonparental relative may derive through 
a parent or by court order may, if the best interests of the child so 
require, be terminated in connection with a proceeding for adoption or 
for termination of parental rights. 

History. Acts 1985, No. 879, § 5; A.S.A. 
1947, § 56-222. 

9-9-224. Child born to unmarried mother. 

In all cases involving a child born to a mother unmarried at the time 
of the child's birth, the following procedure shall apply: 

(a) Upon filing of the petition for adoption and prior to the entry of a 
decree for adoption a certified statement shall be obtained from the 
Putative Father Registry stating: 

(1) The information contained in the registry in regard to the child 
who is the subject of the adoption; or 

(2) That no information is contained in the registry at the time the 
petition for adoption was filed. 



81 



ADOPTION 



9-9-224 



(b) When information concerning the child is contained in the 
Putative Father Registry at the time of the filing of the petition for 
adoption, notice of the adoption proceedings shall be served on the 
registrant unless waived by the registrant in writing signed before a 
notary public. All confidential information regarding the adoptive 
parents and the child to be adopted shall be removed from the notice 
prior to being served to the registrant. Service of notice under this 
section shall be given in accordance with the Arkansas Rules of Civil 
Procedure, except that notice by publication shall not be required. 

(c) Upon receipt of notice, the registrant, if he wishes to appear and 
be heard, shall file a responsive pleading within the time limits set in 
the Arkansas Rules of Civil Procedure. 



History. Acts 1989, No. 496, 
No. 1229, § 1. 



7; 1999, 



RESEARCH REFERENCES 



Ark. L. Notes. Sampson, Coats, & 
Barger, Arkansas' Putative Father Regis- 
try and Related Adoption Code Provisions: 



Inadequate Protection for Thwarted Puta- 
tive Fathers, 1997 Ark. L. Notes 49. 



CASE NOTES 



Analysis 

Grandparents. 
Putative Fathers. 

Grandparents. 

This section does not require that notice 
be given to the maternal grandparents of 
a child where the biological mother has 
consented to the adoption, and nothing in 
this statute applies to grandparents. 
Henry v. Buchanan, 364 Ark. 485, 221 
S.W.3d 346 (2006). 

Putative Fathers. 

Where the putative father and the 
child's mother had a brief romantic rela- 



tionship, he did not know the mother was 
pregnant and did not see or talk to her 
after the encounter, and at the time an 
adoption petition was filed he had not 
registered with the putative-father regis- 
try, the putative father was not statutorily 
entitled to notice of the adoption proceed- 
ing. Escobedo v. Nickita, 365 Ark. 548, 231 
S.W.3d 601 (2006). 

Cited: In re Reeves, 309 Ark. 385, 831 
S.W.2d 607 (1992). 



Subchapter 3 — Children in Public Custody — Consent to Adoption 



SECTION. 

9-9-301. Adoptions under prior law vali- 
dated. 
9-9-302. [Repealed.] 
9-9-303. Administrative reviewers of pe- 



SECTION. 

titions for appointment of 
guardian. 
9-9-304. [Repealed.] 



Preambles. Acts 1977, No. 195 con- 
tained a preamble which read: "Whereas, 



Section 12 of Act 215 of 1911 set out a 
procedure whereby a guardian with power 



9-9-301 



FAMILY LAW 



82 



to consent to adoption may consent to the 
legal adoption of a child in the State of 
Arkansas; and 

"Whereas, Section 20 of Act 369 of 1947 
authorized the Public Welfare Depart- 
ment to be appointed guardian of a child 
with power to consent to adoption in ac- 
cordance with the procedures outlined in 
Section 12 of Act 21 of 1911; and 

"Whereas, Act 451 of 1975 repealed Sec- 
tion 12 of Act 215 of 1911 and did not 
reenact Section 12 of Act 215 of 1911 into 
the new Juvenile Code of 1975 because 
the guardianship procedures were no 
longer a function of the Juvenile Court but 
a function of the Probate Court; and 

"Whereas, the legislature had no inten- 
tion of repealing the procedure that had 
been authorized in Arkansas under Sec- 
tion 12 of Act 215 of 1911; and 

"Whereas, it is the intention of the leg- 
islature that the procedure for the ap- 
pointment of a guardian with power to 
consent to adoption continue in this State; 

"Now therefore . . . . " 

Effective Dates. Acts 1985, No. 322, 
§ 3: Mar. 12, 1985. Emergency clause pro- 
vided: "It is hereby found and determined 
by the General Assembly of the State of 
Arkansas that Public Law 96-272 requires 
periodic dispositional reviews of the sta- 
tus of foster children; that there is a need 
for clarification of the manner in which 
these reviews shall be held; and that the 
enactment of this bill will clarify the man- 
ner in which reviews are to be held and 
will promote efficient operation of the 
courts and the necessary protection of 



children in our State. Therefore, an emer- 
gency is hereby declared to exist, and this 
Act being necessary for the preservation 
of the public peace, health, and safety 
shall be in full force and effect from and 
after its passage and approval." 

Acts 1985, No. 424, § 3: Mar. 20, 1985. 
Emergency clause provided: "It is hereby 
found and determined by the General As- 
sembly of the State of Arkansas that Pub- 
lic Law 96-272 requires periodic disposi- 
tional reviews of the status of foster 
children; that there is a need for clarifica- 
tion of the manner in which these reviews 
shall be held; and that the enactment of 
this bill will clarify the manner in which 
reviews are to be held and will promote 
efficient operation of the courts and the 
necessary protection of children in our 
State. Therefore, an emergency is hereby 
declared to exist, and this Act being nec- 
essary for the preservation of the public 
peace, health, and safety shall be in full 
force and effect from and after its passage 
and approval." 

Acts 1987, No. 778, § 4: Apr. 7, 1987. 
Emergency clause provided: "It is hereby 
found and determined by the General As- 
sembly that the custodial status of minor 
children involved in the adoption process 
in this State is of major significance to the 
Legislature and that this Act is designed 
to clarify this legal status and therefore 
should be given effect immediately. There- 
fore, an emergency is hereby declared to 
exist and this Act being necessary for the 
preservation of the public peace, health 
and safety shall be in full force and effect 
from and after its passage and approval." 



9-9-301. Adoptions under prior law validated. 

All adoptions that have been granted by the probate courts of this 
state under authority of Acts 1947, No. 369, § 7 [repealed], when the 
guardian appointed was appointed under the guardianship procedures 
outlined under Acts 1911, No. 215, § 12 [repealed] and Acts 1947, No. 
369, § 20 [repealed], are confirmed and made valid. 



History. Acts 1977, No. 195, § 4; A.S.A. 
1947, § 56-129. 

A.C.R.C. Notes. Ark. Const., Amend. 
80, adopted by voter referendum and ef- 
fective July 1, 2001, abolished chancery 
courts and established circuit courts as 



the trial courts of original jurisdiction. 
The jurisdiction of the circuit courts now 
includes "all matters previously cogni- 
zable by Circuit, Chancery, Probate and 
Juvenile Courts...." 



83 ADOPTION 9-9-303 

RESEARCH REFERENCES 

Ark. L. Rev. Morrison & Sievers, Adop- 
tion Law in Arkansas, 53 Ark. L. Rev. 1. 

9-9-302. [Repealed.] 

Publisher's Notes. This section, con- § 47. The section was derived from Acts 
cerning the authority to serve as guard- 1977, No. 195, § 1; A.S.A. 1947, § 56-126; 
ian, was repealed by Acts 1989, No. 273, Acts 1987, No. 778, § 1. 

9-9-303. Administrative reviewers of petitions for appointment 
of guardian. 

(a) There shall be created within the Administrative Office of the 
Courts up to two (2) positions for the administration of reviews of the 
status of children for whom a petition has been filed or granted for 
appointment of a guardian with the power to consent to adoption or for 
termination of parental rights. 

(b)(1) The persons appointed as administrative reviewers shall serve 
under the direction of the Director of the Administrative Office of the 
Courts and shall be appointed by the Chief Justice of the Supreme 
Court, conditioned upon the approval of the circuit judge in the affected 
area. 

(2) The persons so appointed shall hold office at the pleasure of the 
Chief Justice and shall possess the same qualifications and shall be 
subject to the same restrictions as circuit judges. 

(3) The persons so appointed shall receive such salaries as may be 
fixed by the biennial appropriations salary act for the Administrative 
Office of the Courts. 

(4) The persons so appointed shall not engage, directly or indirectly, 
in the practice of law and shall hold no other office or employment. 

(5) The persons so appointed shall, in addition to the functions set 
forth in this subsection, perform such additional duties as may be 
prescribed by the Chief Justice of the Supreme Court. 

History. Acts 1977, No. 195, § 2; 1985, courts and established circuit courts as 

No. 322, § 1; 1985, No. 424, § 1; A.S.A. the trial courts of original jurisdiction. 

1947, § 56-127; Acts 1987, No. 778, § 2; The jurisdiction of the circuit courts now 

1989, No. 273, § 47. includes "all matters previously cogni- 

A.C.R.C. Notes. Ark. Const., Amend. zaD l e by Circuit, Chancery, Probate and 

80, adopted by voter referendum and ef- Juvenile Court...." 
fective July 1, 2001, abolished chancery 

CASE NOTES 

Applicability. basis for the order, Act 273 of 1989, which 

Where probate judge entered order ter- repealed subsections (a)-(e) of this section 

minating birth parent's parental rights on and became effective on August 1, 1989, 

May 18, 1989, and specifically incorpo- did not affect the validity of the probate 

rated that authority of this section as a judge's final order because Act 273 was 



9-9-304 



FAMILY LAW 



84 



not retrospective. Goldsmith v. Arkansas Cited: Watson v. Dietz, 288 Ark. Ill, 

Dep't of Human Servs., 302 Ark. 98, 787 702 S.W2d 407 (1986). 
S.W2d 675 (1990). 

9-9-304. [Repealed.] 

Publisher's Notes. This section, con- The section was derived from Acts 1977, 

cerning the requirement of court findings, No. 195, § 3; 1980 (1st Ex. Sess.), No. 66, 

was repealed by Acts 1989, No. 273, § 47. § 1; A.S.A. 1947, § 56-128. 

Subchapter 4 — Arkansas Subsidized Adoption Act 



SECTION. 

9-9-401. Title. 

9-9-402. Definitions. 

9-9-403. Purpose. 

9-9-404. Administration — Funding. 

9-9-405. Promulgation of regulations. 

9-9-406. Records confidential. 

9-9-407. Eligibility. 

9-9-408. Subsidy agreement required — 
Commencement of sub- 
sidy. 



SECTION. 

9-9-409. Subsidy amounts. 

9-9-410. Subsidy agreements — Dura- 
tion. 

9-9-411. Subsidy agreements — Renewal, 
termination, or modifica- 
tion. 

9-9-412. Appeals. 



Preambles. Acts 1979, No. 1109 con- 
tained a preamble which read: "Whereas, 
there are increasing numbers of children 
with special needs who are available for 
adoption but for whom Arkansas Social 
Services is unable to find adoptive homes 
because the children have physical, men- 
tal or emotional handicaps, or are children 
of minority groups, or older children, or 
are sibling groups that entail considerable 
expense on the part of adopting couples 
that adopting couples are unable to as- 
sume; and, 

"Whereas, many children remain in in- 
stitutional care or foster care at great cost 
to the state and at great human cost to the 
children because of the financial inability 
of adopting parents to adopt said children; 
and, 

"Whereas, in recognition of the special 
problems of children, a subsidy program of 
adoption has been developed in many 
states in a way to qualify families assum- 



ing permanent responsibility for these 
special children; 

"Now therefore...." 

Effective Dates. Acts 1985, No. 482, 
§ 2: Mar. 21, 1985. Emergency clause pro- 
vided: "It is hereby found and determined 
by the General Assembly that changes in 
the circumstances affecting the adoptive 
parents who are eligible for subsidies un- 
der the provisions of Act 1109 of 1979 
often necessitate adjustments in the 
amount of the subsidies approved in the 
final decree of adoption; and that the 
immediate passage of this Act is necessary 
to establish procedures for changing the 
amount of such subsidies in an expedi- 
tious manner to serve the needs of the 
adoptive parents and the child involved. 
Therefore, an emergency is hereby de- 
clared to exist and this Act, being imme- 
diately necessary for the preservation of 
the public peace, health, and safety shall 
be in full force and effect from and after its 
passage and approval." 



85 ADOPTION 9-9-403 

9-9-401. Title. 

This subchapter shall be known and may be cited as the "Arkansas 
Subsidized Adoption Act" and includes only state-funded adoptions. 

History. Acts 1979, No. 1109, § 8; 
A.S.A. 1947, § 56-137; Acts 1999, No. 945, 
§ 4. 

RESEARCH REFERENCES 

Ark. L. Rev. Morrison & Sievers, Adop- 
tion Law in Arkansas, 53 Ark. L. Rev. 1. 

CASE NOTES 

Cited: Batiste v. Ark. Dep't of Human 
Servs., 361 Ark. 46, 204 S.W.3d 521 
(2005). 

9-9-402. Definitions. 

As used in this subchapter: 

(1) "Child" means a minor as defined by Arkansas law; and 

(2) "Special needs" means a child who is not likely to be adopted by 
reason of one (1) or more of the following conditions: 

(A) The child has special needs for medical or rehabilitative care; 

(B) Age; 

(C) A racial or ethnic factor; 

(D) A sibling relationship; or 

(E) A child who is at high risk for developing a serious physical, 
mental, developmental, or emotional condition if documentation of 
the risk is provided by a medical professional specializing in the area 
of the condition for which the child is considered at risk. 

History. Acts 1979, No. 1109, § 2; Amendments. The 2005 amendment 
A.S.A. 1947, § 56-131; Acts 1999, No. 945, rewrote this section. 
§ 5; 2005, No. 437, § 7. 

CASE NOTES 

State Custody. through the context of the protective-ser- 

Administrative law judge erred in find- vices case that remained open on the 

ing that children were not in the state's children until their parents' rights were 

custody for adoption subsidy purposes be- terminated. Batiste v. Ark. Dep't of Hu- 

cause, although the children were in their man Servs., 361 Ark. 46, 204 S.W.3d 521 

aunt's physical custody, the state main- (2005). 
tained a supervisory role over the children 

9-9-403. Purpose. 

The purpose of this subchapter is to supplement the Arkansas 
adoption statutes by making possible through public financial subsidy 



9-9-404 FAMILY LAW 86 

the most appropriate adoption of each child certified by the Department 
of Human Services as requiring a subsidy to assure adoption. 

History. Acts 1979, No. 1109, § 1; 
A.S.A. 1947, § 56-130. 

CASE NOTES 

Cited: Batiste v. Ark. Dep't of Human 
Servs., 361 Ark. 46, 204 S.W.3d 521 
(2005). 

9-9-404. Administration — Funding. 

(a) The Department of Human Services shall establish and admin- 
ister an ongoing program of subsidized adoption by persons who are 
determined by the department to be eligible to adopt under this 
subchapter and who are financially unable to otherwise adopt as 
determined by the department using a means-based test. 

(b) Subsidies and services for children under this program shall be 
provided out of funds appropriated to the department for the mainte- 
nance of children in foster care or made available to it from other 
sources. 

History. Acts 1979, No. 1109, § 3; substituted "as determined by the depart- 

A.S.A. 1947, § 56-132; Acts 2005, No. 437, ment using a means-based test" for "the 

§ 8. child or children specified under § 9-9- 

Amendments. The 2005 amendment 402" in (a). 

CASE NOTES 

State Custody. through the context of the protective-ser- 

Administrative law judge erred in find- vices case that remained open on the 

ing that children were not in the state's children until their parents' rights were 

custody for adoption subsidy purposes be- terminated. Batiste v. Ark. Dep't of Hu- 

cause, although the children were in their man Servs., 361 Ark. 46, 204 S.W.3d 521 

aunt's physical custody, the state main- (2005). 
tained a supervisory role over the children 

9-9-405. Promulgation of regulations. 

The Department of Human Services may promulgate regulations 
consistent with this subchapter. 

History. Acts 1979, No. 1109, § 7; 
A.S.A. 1947, § 56-136. 

9-9-406. Records confidential. 

All records regarding subsidized adoption shall be confidential and 
may be opened for inspection only under the provisions of § 9-9-217. 

History. Acts 1979, No. 1109, § 4; 
1981, No. 858, § 1; A.S.A. 1947, § 56-133. 



87 ADOPTION 9-9-408 

9-9-407. Eligibility. 

(a) A family is initially eligible for a subsidy for purposes of adoption 
if: 

(1)( A) No other potential adoptive family is willing and able to adopt 
the child without the use of a subsidy 

(B) In the case of a child who has established significant emotional 
ties with prospective adoptive parents while in their care as a foster 
child, the Department of Human Services may certify the child as 
eligible for a subsidy without searching for families willing to take 
the child without a subsidy 

(C) In the case of a child who will be adopted by members of his or 
her biological family, the department may certify the child as eligible 
for a subsidy without searching for families willing to take the child 
without a subsidy; 

(2) The department has determined the family to be eligible pursu- 
ant to a means-based test; 

(3) The child is in the custody of the department; and 

(4) The child has been determined by the department to have special 
needs. 

(b)(1) Annually, the department shall redetermine eligibility on each 
state adoption subsidy 

(2) A state adoption subsidy shall cease if the adoptive family is no 
longer: 

(A) Eligible for the subsidy based on the means-based test; or 

(B) Providing care and support for the adoptive child. 

(c) A child who is a resident of Arkansas when eligibility for a subsidy 
is certified shall remain eligible and receive a subsidy, if necessary for 
adoption, regardless of the domicile or residence of the adopting parents 
at the time of application for adoption, placement, legal decree of 
adoption, or thereafter. 

(d) A family is eligible for a legal subsidy for purposes of adoption if: 
(1) The child is in the custody of the department; or 

(2)(A) The child was in the custody of the department; 

(B) Legal custody was transferred to a relative or other person; 
and 

(C) The juvenile division case remains open pending the child 
obtaining permanency. 

History. Acts 1979, No. 1109, § 4; Amendments. The 2005 amendment 

1981, No. 858, § 1; A.S.A. 1947, § 56-133; rewrote (a); added present (b) and (d); and 

Acts 1999, No. 518, § 3; 2005, No. 437, redesignated former (b) as present (c). 
§ 9. 

9-9-408. Subsidy agreement required — Commencement of sub- 
sidy. 

(a) When parents are found and approved for adoption of a child 
certified as eligible for a subsidy and before the final decree of adoption 
is issued, there must be a written agreement between the family 



9-9-409 FAMILY LAW 88 

entering into the subsidized adoption and the Department of Human 
Services. 

(b)(1) Adoption subsidies, the amount of which in individual cases 
shall be determined through agreement between the adoptive parents 
and the department but shall be no more than the current foster care 
board rate, may commence with the adoption placement or at the 
appropriate time after the adoption decree and may vary with the 
circumstances of the adopting parents and the needs of the child as well 
as the availability of other resources to meet the child's needs. 

(2)(A) State adoption subsidy agreements shall be for no more than 
one (1) year. 

(B) The department shall redetermine eligibility each year as 
outlined in this subchapter and shall enter into an annual agreement 
only if the adoptive family remains eligible for an adoption subsidy. 
(3)(A) In the case of the special needs child whose eligibility is based 
on a high risk for development of a serious physical, mental, devel- 
opmental, or emotional condition, the adoption subsidy agreement 
shall provide for no adoption subsidy until the child actually develops 
the condition. 

(B) No subsidy payment shall be made until adequate documen- 
tation is submitted by the adoptive parents to the department 
showing that the child has now developed the condition. 

(C) Upon acceptance by the department that the child has devel- 
oped the condition, the adoption subsidy shall be retroactive to the 
date the adoptive parents submitted adequate documentation that 
the child developed the condition. 

(c)(1) When a child is determined to have a causative preexisting 
condition which was not identified or known prior to the final decree of 
adoption and which has resulted in a severe medical or psychiatric 
condition that requires extensive treatment, hospitalization, or institu- 
tionalization, an adoption subsidy may be approved. 

(2) Upon the approval of the subsidy, the adoptive parents shall also 
be entitled to receive retroactive subsidy payments for the two (2) 
months prior to the date such subsidy was approved. 

(3) This subsection will apply only to adoptive placements made on 
or after April 28, 1979. 

History. Acts 1979, No. 1109, § 5; redesignated former (b) as present (b)(1); 

1985, No. 482, § 1; A.S.A. 1947, § 56-134; inserted "but shall be no more than the 

Acts 1993, No. 800, § 1; 2005, No. 437, current foster care board rate" in (b)(1); 

§ 9[10]. and added (b)(2) and (b)(3). 

Amendments. The 2005 amendment 

9-9-409. Subsidy amounts. 

(a) The amount of the subsidy may be readjusted periodically with 
the concurrence of the adopting parents, which may be specified in the 
adoption subsidy agreement, depending upon a change in circum- 
stances. 



89 ADOPTION 9-9-411 

(b) The subsidy may be for special services not covered by any other 
available resource, which include health or education services. To 
ensure the services remain appropriate, the services will be reviewed 
periodically. 

(c) The amount of the time-limited or long-term subsidy may in no 
case exceed that which would be allowable from time to time for the 
child under foster family care or, in the case of a special service, the 
reasonable fee for the service rendered. 

History. Acts 1979, No. 1109, § 5; 
1985, No. 482, § 1; A.S.A. 1947, § 56-134; 
Acts 1999, No. 945, § 6. 

9-9-410. Subsidy agreements — Duration. 

(a) The subsidy agreement shall be binding and constitute an obli- 
gation against the State of Arkansas until the adopted child reaches the 
age of eighteen (18) years or the benefits available to him or her under 
the subsidy agreement are provided by other state or federal programs 
or the adoptive parents no longer qualify for a subsidy under the 
current rules and regulations for subsidized adoptions. 

(b) If funding for the subsidized program is discontinued, all con- 
tracts that have been executed under this section and §§ 9-9-408 and 
9-9-411 shall continue to be honored and shall be a valid claim against 
the State of Arkansas in keeping with the original subsidy agreement 
as long as eligibility for the subsidy continues under § 9-9-411. 

(c) The subsidy agreement may be extended until the age of twenty- 
one (21) years if the child has a documented disability or condition that 
prevents the child from existing independently from the adoptive 
family. To be eligible for the extended subsidy, the family of the child 
must have applied for supplemental security income benefits prior to 
the child's turning eighteen (18) years and have been denied. 

History. Acts 1979, No. 1109, § 4; 
1981, No. 858, § 1; A.S.A. 1947, § 56-133; 
Acts 1999, No. 945, § 7. 

9-9-411. Subsidy agreements — Renewal, termination, or modi- 
fication. 

(a)(1) When subsidies are for more than one (1) year, the adoptive 
parents shall present an annual sworn certification that the adoptive 
child remains under their care and that the condition that caused the 
child to be certified continues to exist. 

(2) The subsidy agreement may be continued in accordance with the 
terms by entering into a new agreement each year but only as long as 
the adopted child is the legal dependent of the adoptive parents and the 
child's condition continues, except that, in the absence of other appro- 
priate resources provided by law and in accordance with Arkansas 



9-9-412 



FAMILY LAW 



90 



regulations, it may not be continued after the adopted child reaches 
majority. 

(b) Termination or modification of the subsidy agreement may be 
requested by the adoptive parents at any time. 

History. Acts 1979, No. 1109, § 4; 
1981, No. 858, § 1; A.S.A. 1947, § 56-133. 

9-9-412. Appeals. 

Any subsidy decision by the Department of Human Services which 
the placement agency or the adoptive parents deem adverse to the child 
shall be reviewable according to the provisions of § 20-76-408. 

History. Acts 1979, No. 1109, § 6; 
A.S.A. 1947, § 56-135. 

CASE NOTES 

Cited: Batiste v. Ark. Dep't of Human 
Servs., 361 Ark. 46, 204 S.W.3d 521 
(2005). 

Subchapter 5 — Voluntary Adoption Registry 



SECTION. 

9-9-501. Definitions. 

9-9-502. Penalty. 

9-9-503. Registry — Establishment and 

maintenance. 
9-9-504. Registry — Operation. 



SECTION. 

9-9-505. Compilation of nonidentifying 

history. 
9-9-506. Disclosure of information. 
9-9-507. Maintenance of records. 
9-9-508. Rules and regulations. 



Effective Dates. Acts 2003, No. 650, 
§ 9: Mar. 25, 2003. Emergency clause pro- 
vided: "It is found and determined by the 
General Assembly of the State of Arkan- 
sas that federal law only allows the Fed- 
eral Bureau of Investigation to release 
criminal history records to certain enti- 
ties, which does not include private enti- 
ties as currently permitted under state 
law. The Department of Arkansas State 
Police entered into an agreement with the 
Federal Bureau of Investigation regard- 
ing federal fingerprint-based criminal 
record checks, which permits disclosure 
only as allowed by federal law, with a 
grace period from the Federal Bureau of 



Investigation to correct state law no later 
than May 1, 2003. Therefore, an emer- 
gency is declared to exist and this act 
being immediately necessary for the pres- 
ervation of the public peace, health and 
safety shall become effective on: (1) The 
date of its approval by the Governor; (2) If 
the bill is neither approved nor vetoed by 
the Governor, it shall become effective on 
the expiration of the period of time during 
which the Governor may veto the bill; or 
(3) If the bill is vetoed by the Governor 
and the veto is overridden, it shall become 
effective on the date the last house over- 
rides the veto." 



91 ADOPTION 9-9-501 

9-9-501. Definitions. 

As used in this subchapter: 

(1) "Adoptee" means a person who has been legally adopted in this 
state; 

(2) "Administrator" means the person charged with maintenance 
and supervision of the registry and may include the administrator's 
agents, employees, and designees; 

(3) "Adoption" means the judicial act of creating the relationship of 
parent and child when it did not exist previously; 

(4) "Adoptive parent" means an adult who has become a parent of a 
child through the legal process of adoption; 

(5) "Adult" means a person eighteen (18) or more years of age; 

(6) "Agency" means any public or voluntary organization licensed or 
approved pursuant to the laws of any jurisdiction within the United 
States to place children for adoption; 

(7) "Birth parent" means: 

(A) The man or woman deemed or adjudicated under laws of a 
jurisdiction of the United States to be the father or mother of genetic 
origin of a child; or 

(B)(i) A putative father of a child if his name appears on the 
original sealed birth certificate of the child or if he has been alleged 
by the birth mother to be and has in writing acknowledged being the 
child's biological father. 

(ii) A putative father who has denied or refused to admit paternity 
shall be deemed not to be a birth parent in the absence of an 
adjudication under the laws of a jurisdiction of the United States that 
he is the biological father of the child; 

(8) "Genetic and social history" means a comprehensive report, when 
obtainable, on the birth parents, siblings of the birth parents, if any, 
other children of either birth parent, if any, and any parents of the birth 
parents, that shall contain the following information: 

(A) Medical history; 

(B) Health status; 

(C) Cause of and age at death; 

(D) Height, weight, eye color, and hair color; 

(E) When appropriate, levels of educational and professional 
achievement; 

(F) Ethnic origins; and 

(G) Religion, if any; 

(9) "Health history" means a comprehensive report of the child's 
health status at the time of placement for adoption and medical history, 
including neonatal, psychological, physiological, and medical care his- 
tory; 

(10) "Mutual consent voluntary adoption registry" or "registry" 
means a place provided for in this subchapter where eligible persons 
may indicate their willingness to have their identity and whereabouts 
disclosed to each other under conditions specified in this subchapter; 
and 



9-9-502 FAMILY LAW 92 

(11) "Putative father" means any man not deemed or adjudicated 
under the laws of the jurisdiction of the United States to be the father 
of genetic origin of a child who claims or is alleged to be the father of 
genetic origin of the child. 

History. Acts 1985, No. 957, § 1; A.S.A. 
1947, § 56-138; Acts 1987, No. 1060, § 1; 
2003, No. 650, § 5. 

RESEARCH REFERENCES 

Ark. L. Rev. Morrison & Sievers, Adop- of Putative Fathers in Arkansas, 25 U. 

tion Law in Arkansas, 53 Ark. L. Rev. 1. Ark. Little Rock L. Rev. 369. 

U. Ark. Little Rock L. Rev. Note: Survey of Legislation, 2003 Arkansas 

Family Law-Putative Fathers and the General Assembly, Family Law, Uniform 

Presumption of Legitimacy-Adams and Adoption Act, 26 U. Ark. Little Rock L. 

the Forbidden Fruit: Clashes Between the R ev 408. 
Presumption of Legitimacy and the Rights 

CASE NOTES 

Cited: In re J.L.T., 31 Ark. App. 85, 788 
S.W.2d 494 (1990). 

9-9-502. Penalty. 

(a)(1) No person, agency, entity, or organization of any kind, includ- 
ing, but not limited to, any officer or employee of this state and any 
employee, officer, or judge of any court of this state shall disclose any 
confidential information relating to any adoption, except as provided by 
statute or pursuant to a court order. 

(2) Any employer who knowingly or negligently allows any employee 
to disclose information in violation of this subchapter shall be subject to 
the penalties provided in subsection (b) of this section, together with the 
employee who made any disclosure prohibited by this subchapter. 

(b) Any person, agency, entity, or organization of any kind that 
discloses information in violation of this subchapter shall be guilty of a 
Class A misdemeanor. 

History. Acts 1985, No. 957, § 3; A.S.A. Cross References. Sentence to im- 
1947, § 56-140; Acts 1987, No. 1060, § 2. prisonment, § 5-4-401. 

9-9-503. Registry — Establishment and maintenance. 

(a)(1) A mutual consent voluntary adoption registry may be estab- 
lished and maintained by any licensed voluntary agency involved in an 
adoption. 

(2) Persons eligible to receive identifying information shall work 
through the agency involved in the adoption. If that agency has merged 
or ceased operations, a successor agency may assume possession of the 
files for the purpose of establishing, maintaining, and operating the 



93 ADOPTION 9-9-504 

mutual consent voluntary adoption registry concerning those adop- 
tions. 

(3) Any licensed voluntary agency may delegate or otherwise con- 
tract with another licensed voluntary agency with expertise in post- 
legal adoption services to establish, maintain, and operate the registry 
for the delegating agency. 

(4) If any agency ceasing to operate does not transfer adoption 
records to another licensed agency, it shall provide all records required 
to be maintained by law to the Department of Human Services. 

(b) The department shall establish and maintain a mutual consent 
voluntary adoption registry for all adoptions arranged by the depart- 
ment or may contract out the function of establishing and maintaining 
the registry to a licensed voluntary agency with expertise in providing 
postlegal adoption services, in which case the agency shall establish 
and maintain the registry that would otherwise be operated by the 
department. 

(c) The department shall keep records of every adult adoptee and 
birth parent reunited through the use of the mutual consent voluntary 
adoption registry. 

History. Acts 1985, No. 957, § 6; A.S.A. 
1947, § 56-143; Acts 1987, No. 1060, § 4; 
2001, No. 409, § 2. 

9-9-504. Registry — Operation. 

(a)(1) The adult adoptee and each birth parent and each individual 
related within the second degree whose identity is to be disclosed may 
voluntarily place his or her name in the appropriate registry by 
submitting a notarized affidavit stating his or her name, address, and 
telephone number and his or her willingness to be identified solely to 
the other relevant persons who register. 

(2) No registration shall be accepted until the prospective registrant 
submits satisfactory proof of his or her identity in accord with regula- 
tions specified in § 9-9-503. 

(3) The failure to file a notarized affidavit with the registry for any 
reason, except death, shall preclude the disclosure of identifying 
information to those persons who do register. 

(b)(1)(A) Upon registering, the registrant shall participate in not less 
than one (1) hour of counseling with a social worker employed by the 
entity that operates the registry. If a birth parent or adult adoptee is 
domiciled outside the state, he or she shall obtain counseling from a 
social worker employed by a licensed agency in that other state 
selected by the entity that operates the registry. 

(B) If a birth parent or adult adoptee is domiciled outside the state, 
he or she shall obtain counseling from a social worker employed by a 
licensed agency in that other state selected by the entity that 
operates the registry. 

(2) When an eligible person registers concerning an adoption that 
was arranged through an agency that has not merged or otherwise 



9-9-504 FAMILY LAW 94 

ceased operations, and that same agency is not operating the registry, 
the entity operating the registry shall notify, by certified mail within 
ten (10) business days after the date of registration, the agency that 
handled the adoption. 

(c) In any case in which the identity of the birth father was unknown 
to the birth mother, or in which the administrator learns that one (1) or 
both birth parents are deceased, this information shall be shared with 
the adult adoptee. In those cases, the adoptee shall not be able to obtain 
identifying information through the registry, and he or she shall be told 
of his or her right to pursue whatever right otherwise exists by law to 
petition a court to release the identifying information. 

(d) The following shall be matching and disclosure procedures: 

(1) Each mutual consent voluntary adoption registry shall be oper- 
ated under the direction of an administrator; 

(2) The administrator shall be bound by the confidentiality require- 
ments of this subchapter and shall be permitted reasonable access to 
the registry for the purposes set forth in this subchapter and for such 
purposes as may be necessary for the proper administration of the 
registry; 

(3) A person eligible to register may request the administrator to 
disclose identifying information by filing an affidavit that sets forth the 
following: 

(A) The current name and address of the affiant; 

(B) Any previous name by which the affiant was known; 

(C) The original and adopted names, if known, of the adopted 
child; 

(D) The place and date of birth of the adopted child; and 

(E)(i) The name and address of the adoption agency or other entity, 
organization, or person placing the adopted child, if known. The 
affiant shall notify the registry of any change in name or location 
which occurs subsequent to his or her filing the affidavit. The registry 
shall have no duty to search for the affiant who fails to register his or 
her most recent address; 

(ii) The affiant shall notify the registry of any change in name or 
location that occurs subsequent to his or her filing the affidavit. The 
registry shall have no duty to search for the affiant who fails to 
register his or her most recent address; 

(iii) The registry shall have no duty to search for the affiant who 
fails to register his or her most recent address; 

(4)(A) The administrator of the mutual consent voluntary adoption 
registry shall process each affidavit in an attempt to match the adult 
adoptee and the birth parents or individuals related within the 
second degree. The processing shall include research from agency 
records, when available, and when agency records are not available, 
research from court records to determine conclusively whether the 
affiants match. 

(B) The processing shall include research from agency records, 
when available, and when agency records are not available, research 



95 ADOPTION 9-9-505 

from court records to determine conclusively whether the affiants 

match; 

(5) The administrator shall determine that there is a match when 
the adult adoptee and a birth parent or individual related within the 
second degree have filed affidavits with the mutual consent voluntary 
adoption registry and have each received the counseling required in 
subsection (b) of this section; and 

(6)(A) An agency receiving an assignment of a match under the 

provisions of this subchapter shall directly or by contract with a 

licensed adoption agency in this state notify all registrants through a 

direct and confidential contact. 

(B) The contact shall be made by an employee or agent of the 
agency receiving the assignment. 

(C) The employee or agent shall be a trained social worker who has 
expertise in postlegal adoption services. 

(e)(1) Any affidavits filed and other information collected shall be 
retained for ninety-nine (99) years following the date of registration. 

(2) Any qualified person may choose to remove his or her name from 
the registry at any time by filing a notarized affidavit with the registry. 

(f)(1) A mutual consent voluntary adoption registry shall obtain only 
information necessary for identifying registrants. 

(2) In no event shall the registry obtain information of any kind 
pertaining to the adoptive parents or any siblings to the adult adoptee 
who are children of the adoptive parents. 

(g) All costs for establishing and maintaining a mutual consent 
voluntary adoption registry shall be obtained through users' fees 
charged to all persons who register. 

(h) Beginning January 1, 2002, the Department of Human Services 
shall place the affidavit form for placement on the mutual adoption 
registry on the department's website. 

History. Acts 1985, No. 957, § 7; A.S.A. 
1947, § 56-144; Acts 1987, No. 1060, §§ 5, 
6; 2001, No. 409, § 1; 2003, No. 650, § 6. 

RESEARCH REFERENCES 

U. Ark. Little Rock L. Rev. Survey of sembly, Family Law, Uniform Adoption 
Legislation, 2003 Arkansas General As- Act, 26 U. Ark. Little Rock L. Rev. 408. 

9-9-505. Compilation of nonidentifying history. 

(a) Prior to placement for adoption, the licensed adoption agency or, 
when an agency is not involved, the person, entity, or organization 
handling the adoption shall compile and provide to the prospective 
adoptive parents a detailed, written health history and genetic and 
social history of the child that excludes information that would identify 
birth parents or members of a birth parent's family and that shall be set 
forth in a document that is separate from any document containing 
such identifying information. 



9-9-506 FAMILY LAW 96 

(b) Records containing the nonidentifying information and that are 
set forth on a document that is separate from any document containing 
identifying data: 

(1)(A) Shall be retained by the agency or, when no agency is involved, 

by the person, entity, or organization handling the adoption, for 

ninety-nine (99) years. 

(B)(i) If the agency or person, entity, or organization who handled 

the adoption ceases to function, that agency or intermediary shall 

transfer records containing the nonidentifying information on the 

adoptee to the Department of Human Services. 

(ii) However, a licensed agency ceasing operation may transfer the 

records to another licensed agency within this state, but only if the 

agency transferring the records gives notice of the transfer to the 

department; and 

(2) Shall be available upon request throughout the time specified in 
subdivision (b)(1) of this section, together with any additional noniden- 
tifying information that may have been added on health or on genetic 
and social history, but which excludes information identifying any birth 
parent or member of a birth parent's family or the adoptee or any 
adoptive parent of the adoptee, to the following persons only: 

(A) The adoptive parents of the child or, in the event of death of the 
adoptive parents, the child's guardian; 

(B) The adoptee; 

(C) In the event of the death of the adoptee, the adoptee's children, 
the adoptee's widow or widower, or the guardian of any child of the 
adoptee; 

(D) The birth parent of the adoptee; and 

(E) Any child welfare agency having custody of the adoptee. 

(c) The actual and reasonable cost of providing nonidentifying health 
history and genetic and social history shall be paid by the person 
requesting the information. 

History. Acts 1985, No. 957, § 8; A.S.A. 
1947, § 56-145; Acts 1987, No. 1060, § 7; 
2003, No. 650, § 7. 

RESEARCH REFERENCES 

U. Ark. Little Rock L. Rev. Survey of sembly, Family Law, Uniform Adoption 
Legislation, 2003 Arkansas General As- Act, 26 U. Ark. Little Rock L. Rev. 408. 

9-9-506. Disclosure of information. 

(a) Notwithstanding any other provision of law, the information 
acquired by any registry shall not be disclosed under any sunshine or 
freedom of information legislation, rules, or practice. 

(b) Notwithstanding any other provision of law, no person, group of 
persons, or entity, including any agency, may file a class action to force 
the registry to disclose identifying information. 



97 ADOPTION 9-9-601 

(c) In exceptional circumstances, specified papers and records per- 
taining to particular adoptions may be inspected by the adoptee, the 
adoptive parents, and the birth parents if the court granting the 
adoption finds by clear and convincing evidence that good cause exists 
for the inspection. 

History. Acts 1985, No. 957, § 4; A.S.A. 
1947, § 56-141. 

9-9-507. Maintenance of records. 

All records of any adoption finalized in this state shall be maintained 
for ninety-nine (99) years by the agency, entity, organization, or person 
arranging the adoption. 

History. Acts 1985, No. 957, § 2; A.S.A. 
1947, § 56-139. 

9-9-508. Rules and regulations. 

The Department of Human Services shall issue such rules and 
regulations as are necessary for implementing this subchapter. 

History. Acts 1985, No. 957, § 5; A.S.A. 
1947, § 56-142; Acts 1987, No. 1060, § 3. 

Subchapter 6 — Legal Representation 

SECTION. 

9-9-601. The Governor's Pro Bono Adop- 
tion Service Award. 



Cross References. Attorneys-at-Law, 
16-22-101 et seq. 



9-9-601. The Governor's Pro Bono Adoption Service Award. 

(a) The Governor shall award the Governor's Pro Bono Adoption 
Service Award by proclamation in recognition of the efforts and sacrifice 
of those attorneys who provide adoption services on a volunteer basis. 

(b) Those receiving the Governor's Pro Bono Adoption Service Award 
shall be selected from a list of names that may be submitted annually 
to the Governor by judges, attorneys, the Department of Human 
Services, and other related organizations, agencies, and professional 
associations. 

History. Acts 2001, No. 1273, § 1. 



9-9-701 FAMILY LAW 98 

Subchapter 7 — The Streamline Adoption Act 

SECTION. SECTION. 

9-9-701. Streamlined adoptions by the 9-9-702. Fast-tracked adoption of Gar- 
Department of Human rett's Law babies. 
Services. 

9-9-701. Streamlined adoptions by the Department of Human 
Services. 

(a)(1) A family who adopts a child from the Department of Human 
Services shall be eligible for the streamlined adoption process if the 
family chooses to adopt another child from the department and the 
department selects the family to be the adoptive parents of a child in 
the custody of the department. 

(2) The adoptive family is not eligible for the streamlined adoption 
process if more than five (5) years have passed since the adoptive family 
finalized the adoption of a child placed by the department in the 
adoptive home. 

(b) Upon contact by the adoptive family, the department shall: 

(1)( A) Obtain a copy of the original home study completed on the 
adoptive family. 

(B) If needed, the department shall unseal the adoption file from 
the previous adoption pursuant to § 9-9-2 17(a) in order to obtain a 
copy of the original home study on the adoptive family; and 
(2) Complete an update to the original home study within forty-five 
(45) business days from contact by the adoptive family. 

(c) The adoptive family shall be required to obtain updated criminal 
background checks and central registry checks as outlined in this 
chapter. 

(d) The department shall not require the adoptive family to attend 
training. 

(e) The department shall place the adoptive family in the pool of 
waiting adoptive families eligible to adopt a child from the department 
upon: 

(1) Completion of the updated home study that is favorable; and 

(2) Receipt of the: 

(A) Criminal background check; and 

(B) Central registry check. 

(f)(1) A family who has a foster child in its home who was placed by 
the department shall be eligible for the streamlined adoption process if 
the department selects the foster family to be the adoptive family of the 
foster child. 

(2) Upon selection, the department shall complete the adoptive home 
study within forty-five (45) business days. 

(3) The department shall not require the foster family to attend 
training. 

History. Acts 2005, No. 1685, § 1; Amendments. The 2007 amendment 
2007, No. 539, § 6. added "and the department selects the 



99 ADOPTION 9-9-702 

family to be the adoptive parents of a child passed since placement of a child in the 

in the custody of the department" at the adoptive home" in present (b); and, in 

end of (a)( 1); deleted former (b) and redes- (f)(1), substituted "foster family" for "fami- 

ignated the remaining subsections accord- l y ' s parents" and "family" for "parents." 
ingly; deleted "and if one (1) year has 

9-9-702. Fast-tracked adoption of Garrett's Law babies. 

(a) As used in this section, "newborn" means an infant who is thirty 
(30) days of age or younger. 

(b) If a report of neglect under § 12-18-103(13)(B) is made to the 
Arkansas State Police Child Abuse Hotline, the mother has the option 
to place the newborn for: 

(1) Adoption through a licensed child placement agency as defined in 
§ 9-28-402(7); or 

(2) A private adoption with a person licensed to practice medicine or 
law. 

(c) If a newborn is taken into the custody of the Department of 
Human Services as the result of a call to the hotline of neglect under 
§ 12-18-103(13)(B), the mother has the option to place the newborn for: 

(1) Adoption through a licensed child placement agency under § 9- 
28-402(7); or 

(2) A private adoption with a person licensed to practice medicine or 
law. 

(d)(1)(A) If the proposed adoptive family has not completed the 
adoptive home study process, including the required criminal back- 
ground check, the newborn shall be placed in a foster home that is 
licensed and approved under § 9-28-401 et seq. or in the custody of 
the department. 

(B) The newborn shall remain in a licensed or approved foster 
home or in the custody of the department until the required home 
study and criminal background checks are completed on the proposed 
adoptive parents. 

(2) If the newborn is in the custody of the department, an order 
transferring custody to the proposed adoptive parents is required before 
the newborn is placed in the home of the proposed adoptive parents. 

(3) If the newborn is in the custody of the department, any petition 
for adoption shall be filed in the open dependency-neglect case. 

(4) The adoption shall be granted only if the proposed adoptive 
placement is in the best interests of the newborn. 

(e)(1)(A) If the mother wishes for a relative to adopt her newborn, the 
newborn shall be placed in a foster home that is licensed and 
approved under § 9-28-401 et seq. or in the custody of the depart- 
ment unless the relative has a completed approved adoptive home 
study at the time placement is needed. 

(B) If a home study has not been completed on the relative, an 
adoptive home study shall be completed on the proposed relative if 
the proposed relative is an appropriate placement for the newborn. 

(C) The home study on the relative cannot be waived. 



9-9-702 FAMILY LAW 100 

(2) The adoption by a relative of the newborn shall be denied unless: 

(A) The proposed relative adoptive parents have an approved 
adoptive home study or the department approves the proposed 
relative adoptive parents to adopt under state law on adoption, child 
welfare agency licensing law and regulations, and department policy 
and procedures; 

(B) The court determines the proposed relative adoptive parents 
have the capacity and willingness to abide by orders regarding care, 
supervision, and custody so that child protection will not be an issue 
if the adoption is granted; and 

(C) The court enters an order describing the level of contact, if any, 
which is permitted to occur between the birth parent and the 
proposed relative adoptive parents and the consequences for violation 
of the order of contact under § 5-26-502. 

(f) The department shall remain involved in each placement that is 
made under this section to monitor whether the mother withdraws her 
consent to the adoption. 

(g) If the mother withdraws her consent to the adoption, the depart- 
ment shall initiate an action to ensure the protection of the child, 
including without limitation, taking the child into custody if custody is 
warranted to protect the health and safety of the child. 

History. Acts 2007, No. 381, § 1; 2009, by No. 474 inserted (a), (d), and (e), redes- 
No. 474, § 1; 2009, No. 758, § 8. ignated the remaining subsections accord- 

A.C.R.C. Notes. Acts 2009, No. 758, ingly, and made minor stylistic changes. 

§ 29, provided: "The contingency in Acts The 2009 amendment by No. 758 sub- 

2009, No. 758, § 29, was met by Acts stituted "§ 12-18-103(13)(B)" for "§ 12-12- 

2009, No. 749." 503(12)(B)" in the introductory language 

Amendments. The 2009 amendment of (b) and (c). 

CHAPTER 10 
PATERNITY 



subchapter. 

1. General Provisions. 

2. Artificial Insemination. 



A.C.R.C. Notes. Ark. Const., Amend, ness of this act on July 1, 1991, is essen- 

80, adopted by voter referendum and ef- tial to the operation of the child support 

fective July 1, 2001, abolished chancery collection system in this state and that in 

courts and established circuit courts as the event of an extension of the Regular 

the trial courts of original jurisdiction. Session, the delay in the effective date of 

The jurisdiction of the circuit courts now this act beyond July 1, 1991, could work 

includes "all matters previously cogni- irreparable harm upon the proper admin- 

zable by Circuit, Chancery, Probate and istration and provision of essential gov- 

Juvenile Court...." ernmental programs. Therefore, an emer- 

Effective Dates. Acts 1991, No. 1095, gency is hereby declared to exist and this 

§ 9: July 1, 1991. Emergency clause pro- Act being necessary for the immediate 

vided: "It is hereby found and determined preservation of the public peace, health 

by the Seventy-Eighth General Assembly and safety shall be in full force and effect 

of the State of Arkansas that the effective- from and after July 1, 1991." 



101 



PATERNITY 



Acts 1993, No. 396, § 7: Mar. 9, 1993. 
Emergency clause provided: "It is hereby 
found and determined by the General As- 
sembly that it is in the best interests of 
the people of the State of Arkansas that 
child support be collected and enforced in 
the most expedient manner for all chil- 
dren of this state; that a smooth transition 



from current requirements to those of this 
Act requires that the provisions become 
effective immediately. Therefore, an emer- 
gency is hereby declared to exist and this 
Act being necessary for the preservation 
of the public peace, health, and safety 
shall be in full force and effect from and 
after its passage and approval." 



RESEARCH REFERENCES 



C.J.S. 25A C.J.S., Dead Bds, § 4. 



Subchapter 1 — General Provisions 



SECTION. SECTION. 

9-10-101. [Repealed.] 9-10-110. 

9-10-102. Actions governed by Arkansas 
Rules of Civil Procedure — 
Limitations periods — 9-10-111. 
Venue — Summons — 
Transfer between local ju- 9-10-112. 
risdictions. 

9-10-103. Temporary orders — Adminis- 
trative orders for paternity 9-10-113. 
testing. 



9-10-104. 


Suit to determine paternity of 


9-10-114. 




child born outside of mar- 


9-10-115. 




riage. 




9-10-105. 


Trial by court. 


9-10-116. 


9-10-106. 


[Repealed.] 


9-10-117. 


9-10-107. 


[Repealed.] 


9-10-118. 


9-10-108. 


Paternity test. 


9-10-119. 


9-10-109. 


Child support following finding 
of paternity. 


9-10-120, 



Judgment for lying-in expenses 
— Commitment on failure 
to pay. 

Judgment for child support — 
Bond. 

Income withholding — Delin- 
quent noncustodial par- 
ent. 

Custody of child born outside of 
marriage. 

Visitation rights of father. 

Modification of orders or judg- 
ments. 

[Repealed.] 

[Repealed.] 

[Superseded.] 

Revival of judgment. 

Effect of acknowledgment of 
paternity. 



Preambles. Acts 1983, No. 437 con- 
tained a preamble which read: "Whereas, 
it has been brought to the attention of the 
Arkansas General Assembly that Section 
1 of Act 473 of 1981 (Ark. Stat. 34-705.1) 
erroneously refers to spouses in a proceed- 
ing brought pursuant to the Bastardy 
Statutes, causing uncertainty in said stat- 
utes; 

"Now therefore...." 

Cross References. Competent wit- 
nesses, § 16-43-901. 

Effective Dates. Acts 1875 (Adj. Sess.), 
No. 24, § 12: effective on passage. 

Acts 1879, No. 72, § 5: effective on pas- 
sage. 



Acts 1927, No. Ill, § 2: effective on 
passage. 

Acts 1955, No. 127, § 4: Mar. 2, 1955. 
Emergency clause provided: "It is hereby 
determined by the General Assembly that 
the courts of this State are called upon to 
render decisions in matters involving the 
paternity of children and that the imme- 
diate passage of this Act is necessary to 
provide the courts with a means of expe- 
diting such cases. Therefore, an emer- 
gency is hereby declared to exist and this 
Act being necessary for the immediate 
preservation of the public peace, health 
and safety shall be in full force and effect 
from and after its passage and approval." 



FAMILY LAW 



102 



Acts 1955, No. 374, § 4: Mar. 24, 1955. 
Emergency clause provided: "It has been 
found and is declared by the General 
Assembly of the State of Arkansas that 
the laws of this State relating to bastardy 
proceedings are not in conformity with the 
modern court procedure of this State; that 
as a result, general confusion exists in the 
courts of this State; that this Act seeks to 
modernize these bastardy laws to conform 
to present court procedure. Therefore, an 
emergency is declared to exist, and this 
Act being necessary for the preservation 
of the public peace, health and safety, 
shall take effect and be in force from the 
date of its approval." 

Acts 1983, No. 177, § 2: Feb. 15, 1983. 
Emergency clause provided: "It is hereby 
found and determined by the Seventy- 
Fourth General Assembly that the 
present Arkansas law governing non-sup- 
port is constitutionally suspect on equal 
protection grounds; that there is an imme- 
diate need to remedy this law by legisla- 
tive action. Therefore, an emergency is 
hereby declared to exist and this Act being 
necessary for the public peace, health and 
safety shall be full force and effect from 
and after its passage and approval." 

Acts 1985, No. 988, § 6: Aug. 1, 1985. 

Acts 1987, No. 599, § 4: Apr. 4, 1987. 
Emergency clause provided: "It is hereby 
found and determined by the General As- 
sembly that there is an urgent need for 
clarification as to what fees are permitted 
to be charged for support collection 
throughout the state. Therefore, an emer- 
gency is hereby declared to exist and this 
Act being necessary for the immediate 
preservation of the public peace, health 
and safety shall be in full force and effect 
from and after its passage and approval." 

Acts 1989, No. 948, § 10: Mar. 27, 1989, 
except §§ 1, 2, and 5 effective Oct. 1, 1989. 
Emergency clause provided: "It is hereby 
found and determined by the General As- 
sembly that it is in the best interest of the 
people of the State of Arkansas that child 
support be collected in the most expedient 
manner for all children of this state; that 



new federal requirements of the Title IV-D 
program operated by the Department of 
Human Services should be extended to all 
litigants of this state enforcing collection 
of child support; and that the smooth 
transition from current requirements to 
those of this act require some provisions to 
become effective immediately upon pas- 
sage and other effective at a later date. 
Therefore, an emergency is hereby de- 
clared to exist and this act being neces- 
sary for the preservation of the public 
peace, health and safety shall be in full 
force and effect from and after its passage 
and approval with sections 1, 2 and 5 of 
this act to become effective October 1, 
1989." 

Acts 1991, No. 986, § 5: Apr. 8, 1991. 
Emergency clause provided: "It is hereby 
found and determined by the Seventy- 
Eighth General Assembly that it is in the 
best interest of the people of the State of 
Arkansas that paternity of the children be 
established in the most expedient manner 
for all children of this state; and the 
smooth transition from current require- 
ments of those of this act require the 
provisions to become effective immedi- 
ately upon passage. Therefore, an emer- 
gency is hereby declared to exist and this 
act being necessary for the immediate 
preservation of the public peace, health 
and safety shall be in full force and effect 
from and after its passage and approval." 

Acts 1995, No. 1091, § 7: Apr. 10, 1995. 
Emergency clause provided: "It is hereby 
found and determined by the Eightieth 
General Assembly that Arkansas law gov- 
erning voluntary paternity acknowledg- 
ments does not conform with current fed- 
eral requirements set forth in Title IV-D of 
the Social Security Act; that failure to 
immediately remedy the law by legislative 
action will place Title IV-D and Aid to 
Families With Dependent Children fund- 
ing in jeopardy. Therefore, an emergency 
is hereby declared to exist and this act 
being necessary for the immediate preser- 
vation of the public peace, health and 
safety shall be in full force and effect from 
and after its passage and approval." 



RESEARCH REFERENCES 



A.L.R. Right of indigent defendant in 
paternity suit to have assistance of coun- 
sel at state expense. 4 A.L.R.4th 363. 



Statute limiting time for commence- 
ment of action as violating child's consti- 
tutional rights. 16 A.L.R.4th 926. 



103 



PATERNITY 



9-10-102 



Illegitimate child's right to maintain 
action to determine paternity. 19 
A.L.R.4th 1082. 

Human Leukocyte Antigen (HLA) tis- 
sue typing tests: admissibility, weight, 
and sufficiency in paternity cases. 37 
A.L.R.4th 167. 

Admissibility and weight of blood- 
grouping tests in disputed paternity 
cases. 43 A.L.R.4th 579. 

Right to jury trial in paternity proceed- 
ings. 51A.L.R.4th565. 

Necessity or propriety of appointment of 
independent guardian for child who is 
subject of paternity proceeding. 70 
A.L.R.4th 1033. 

Validity and construction of surrogate 
parenting agreement. 77 A.L.R.4th 70. 

Admissibility of DNA identification evi- 
dence. 84A.L.R.4th313. 

Parental rights of man who is not bio- 
logical or adoptive father of child but was 
husband or cohabitant of mother when 
child was conceived or born. 84 A.L.R.4th 
655. 

Admissibility or compellability of blood 
test to establish testee's nonpaternity for 
purpose of challenging testee's parental 
rights. 87 A.L.R.4th 572. 

Rights of an unwed father to obstruct 
adoption of his child by withholding con- 



sent. 61A.L.R.5th 151. 

Authentication of blood sample taken 
from human body for purposes other than 
determining blood alcohol content. 77 
A.L.R.5th 201. 

Am. Jur. 10 Am. Jur. 2d, Bastards, § 1 
et seq. 

Ark. L. Rev. Some Problems of Courts 
for Children in Arkansas, 9 Ark. L. Rev. 
23. 

Bastardy, 9 Ark. L. Rev. 391. 

Legitimacy and Paternity, 14 Ark. L. 
Rev. 55. 

Fuqua, Comments: Bastardy Law in 
Arkansas — The Need for Revision, 33 
Ark. L. Rev. 178. 

Note, How a State's Interests in a 
Child's Welfare Are Frustrated by Indis- 
criminate Application of the Final Judg- 
ment Rule: Arkansas Department of Hu- 
man Services v. Lopez, 44 Ark. L. Rev. 895. 

C.J.S. 10 C.J.S., Bastards, § 1 et seq. 

U. Ark. Little Rock L.J. Sullivan, The 
Need for a Business or Payroll Records 
Affidavit for Use in Child Support Mat- 
ters, 11 U. Ark. Little Rock L.J. 651. 

Parness, Prospective Fathers and Their 
Unborn Children, 13 U. Ark. Little Rock 
L.J. 165. 



CASE NOTES 



Children Born Out of Wedlock. 

Neither Lord Mansfield's Rule, which 
provides that the declarations of a father 
or mother cannot be admitted to bastard- 
ize the issue born after marriage, nor the 
presumption of legitimacy of children 



born during the wedlock of two persons, 
apply where the child is born out of wed- 
lock. Dunn v. Davis, 291 Ark. 492, 725 
S.W2d 853 (1987). 

Cited: Hall v. Freeman, 327 Ark. 148, 
936 S.W2d 761 (1997). 



9-10-101. [Repealed.] 



Publisher's Notes. This section, con- 
cerning jurisdiction and judges of chan- 
cery courts, was repealed by Acts 2003, 
No. 1185, § 9. The section was derived 



from Acts 1875 (Adj. Sess.), No. 24, § 1, p. 
25; C. & M. Dig., § 772; Pope's Dig., 
§ 928; A.S.A. 1947, § 34-701; Acts 1989, 
No. 725, § 3. 



9-10-102. Actions governed by Arkansas Rules of Civil Proce- 
dure — Limitations periods — Venue — Summons — 
Transfer between local jurisdictions. 

(a) An action to establish the paternity of a child or children shall be 
commenced and proceed under the Arkansas Rules of Civil Procedure 



9-10-102 FAMILY LAW 104 

applicable in circuit court, as amended from time to time by the 
Supreme Court. 

(b) Actions brought in the State of Arkansas to establish paternity 
may be brought at any time. Any action brought prior to August 1, 1985, 
but dismissed because of a statute of limitations in effect prior to that 
date, may be brought for any person for whom paternity has not yet 
been established. 

(c) Venue of paternity actions shall be in the county in which the 
plaintiff resides or, in cases involving a juvenile, in the county in which 
the juvenile resides. 

(d) Summons may be issued in any county of this state in which the 
defendant may be found. 

(e)(1) Upon a default by the defendant, the court shall grant a finding 
of paternity and shall establish a child support order based on an 
application in accordance with the Arkansas Rules of Civil Procedure 
and the family support chart. 

(2) The court's granting of a default paternity judgment shall be 
based on the presumed mother's affidavit of facts in which the pre- 
sumed mother names the defendant as the father of her child and states 
the defendant's access during the probable period of conception. 

(f)(1)(A) The court where the final decree of paternity is rendered 
shall retain jurisdiction of all matters following the entry of the 
decree. 

(B)(i) If more than six (6) months subsequent to the final adjudi- 
cation, however, each of the parties to the action has established a 
residence in a county of another judicial district within the state, one 

(1) or both of the parties may petition the court that entered the final 
adjudication to request that the case be transferred to another 
county. 

(ii) The case shall not be transferred absent a showing that the 
best interest of the parties justifies the transfer. 

(hi) If a justification for transfer of the case has been made, there 
shall be an initial presumption for transfer of the case to the county 
of residence of the physical custodian of the child. 

(2) If the court that entered the final adjudication agrees to transfer 
the case to another judicial district, upon proper motion and affidavit 
and notice and payment of a refiling fee, the court shall enter an order 
transferring the case and the refiling fee and charging the clerk of the 
court to transmit forthwith certified copies of all records pertaining to 
the case to the clerk of the court in the county where the case is being 
transferred. 

(3) An affidavit shall accompany the motion to transfer and recite 
that the parent or parents, the physical custodian, and the Office of 
Child Support Enforcement of the Revenue Division of the Department 
of Finance and Administration, as appropriate, have been notified in 
writing that a request has been made to transfer the case. 

(4) Notification pursuant to this section must inform each recipient 
that any objection must be filed within twenty (20) days from the date 
of receipt of the affidavit and motion for transfer. 



105 



PATERNITY 



9-10-102 



(5) The clerk receiving a transferred case shall within fourteen (14) 
days of receipt set up a case file, docket the case, and afford the case full 
faith and credit as if the case had originated in that judicial district. 



History. Acts 1875 (Adj. Sess.), No. 24, 
§ 2, p. 25; 1879, No. 72, § 1, p. 95; C. & M. 
Dig., § 773; Pope's Dig., § 929; Acts 1955, 
No. 127, § 2; 1983, No. 595, § 1; 1985, No. 
988, § 1; A.S.A. 1947, §§ 34-702, 
34-705.2; Acts 1989, No. 725, § 1; 1995, 
No. 1184, § 42; 1997, No. 1296, § 3; 1999, 
No. 539, § 2; 2003, No. 1185, § 10. 



A.C.R.C. Notes. Ark. Const., Amend. 
80, adopted by voter referendum and ef- 
fective July 1, 2001, abolished chancery 
courts and established circuit courts as 
the trial courts of original jurisdiction. 



RESEARCH REFERENCES 



U. Ark. Little Rock L.J. Legislative 
Survey, Family Law, 4 U. Ark. Little Rock 
L.J. 595. 

Survey — Family Law, 11 U. Ark. Little 
Rock L.J. 215. 

U. Ark. Little Rock L. Rev. Note: 



Family Law-Putative Fathers and the 
Presumption of Legitimacy- Adams and 
the Forbidden Fruit: Clashes Between the 
Presumption of Legitimacy and the Rights 
of Putative Fathers in Arkansas, 25 U. 
Ark. Little Rock L. Rev. 369. 



CASE NOTES 



Analysis 

Constitutionality. 
Purpose. 
Child Support. 
Dismissal. 
Jury Trial. 
Nature of Action. 
Res Judicata. 
Venue. 

Constitutionality. 

This section is constitutional. Dobson v. 
State, 69 Ark. 376, 63 S.W. 796 (1901). 

Purpose. 

Indemnity and protection of the coun- 
ties against the burden of supporting the 
illegitimate child, and not the punishment 
of the father, are the objects contemplated 
by the statute. Chambers v. State, 45 Ark. 
56 (1885). 

Child Support. 

By common law the mother and not the 
father of an illegitimate child is bound to 
support him, but this section confers on 
the mother of the child the right to compel 
the father to contribute to its support; and 
a promise on the father's part to contrib- 
ute to the child's support is a valid legal 
liability and is enforceable against him or, 
after his death, against his estate. Davis' 



Estate v. Herrington, 53 Ark. 5, 13 S.W. 
215 (1890). 

In an action to enforce an unwritten 
promise to support and for annual pay- 
ments, the recovery is limited to the last 
three years. Davis' Estate v. Herrington, 
53 Ark. 5, 13 S.W. 215 (1890) (decision 
prior to 1985 amendment). 

The mother may enforce an implied 
obligation of father to support illegitimate 
child. Scott v. State, 173 Ark. 625, 292 
S.W. 979 (1927). 

Dismissal. 

Because a dismissal with prejudice is 
void in a paternity action, such a ruling 
does not bar future proceedings. State 
Office of Child Support Enforcement v. 
Flowers, 57 Ark. App. 223, 944 S.W2d 558 
(1997). 

Jury Trial. 

Since a paternity proceeding was essen- 
tially an action at law for the recovery of 
money, the appellant was entitled to a 
jury trial on the issues of fact. Waddell v. 
State, 235 Ark. 293, 357 S.W2d 651 
(1962). 

Nature of Action. 

Although a paternity proceeding is in 
the name of the state, it is of a civil 
nature. Chambers v. State, 45 Ark. 56 
(1885); Pearce v. State, 55 Ark. 387, 18 



9-10-103 FAMILY LAW 106 

S.W. 380 (1892); Wimberly v. State, 90 child had resided with his mother and in 

Ark. 514, 119 S.W. 668 (1909); Belford v. which he was cared for after her death by 

State, 96 Ark. 274, 131 S.W. 953 (1910); his grandparents. Overton v. Jones, 74 

State ex rel. Woolems v. Davis, 178 Ark. Ark. App. 122, 45 S.W3d 427 (2001). 

692, 11 S.W2d 479 (1928); Swaim v. State, Trial court erred in granting mother's 

184 Ark. 1107, 44 S.W2d 1098 (1932). motion to transfer a custody action be- 

D T ,. . cause there was evidence that the father 

Res Judicata. , ,-. , , ._. , ., . 

Decision in an annulment proceeding * eve i* established a residence outside of 

brought on the ground of false represen- ^he first fX ^^.F a ^^ ed by sub " 

tation as to paternity of child is not res division CWXBXO of this sectiom 

judicata in either a paternity or heirship f^^^o ^^ PP ' ' 

action, as child is not a party privy to the &. W.dd 452U005). ...... ._ 

annulment proceeding. Shatford v. Shat- ^ited: Georg ev^ George, 247 Ark. 17, 

ford 214 ^rk 612 217 S W2d 917 (1949) 444 SW2d 62 (1969); Roque v. Frederick, 
ford, 214Ark.bl^l/b.W.,!a 91/ (1949). 272 ^ 3^ 6U gW2d mi (19gl) . 

Venue. Fuller v. Robinson, 279 Ark. 252, 650 

In a proceeding to determine the cus- S.W. 2d 585 (1983); Chandler v. Baker, 16 

tody of a child after his mother died, Ark. App. 253, 700 S.W2d 378 (1985); 

venue was not proper in the county in State Office of Child Support Enforcement 

which the father resided; instead, venue v. Harnage, 322 Ark. 461, 910 S.W2d 207 

was proper in the county in which the (1995). 

9-10-103. Temporary orders — Administrative orders for pater- 
nity testing. 

(a) If the child is not born when the accused appears before the 
circuit court, the court may hear evidence and may make temporary 
orders and findings pending the birth of the child. 

(b)(1)(A) If the parentage of a child has not been established, the 
Office of Child Support Enforcement of the Revenue Division of the 
Department of Finance and Administration shall send a notice to the 
putative father, or mother, as appropriate, that he or she is a 
biological parent of the child. 

(B) The notice shall inform the parties that the putative father and 
the mother of the child may sign an affidavit acknowledging paternity 
and that any party may request that scientifically accepted paternity 
testing be conducted to assist in determining the identities of the 
child's parents. 

(2)(A) In all cases brought pursuant to Title IV-D of the Social 
Security Act, 42 U.S.C. § 651 et seq., upon sworn statement of the 
mother, putative father, or the office alleging paternity, the office shall 
issue an administrative order for paternity testing that requires the 
mother, putative father, and minor child to submit themselves for 
paternity testing. 

(B) The office shall cause a copy of the administrative order for 
paternity testing to be served on the mother and putative father. 

(C) Paternity testing accomplished pursuant to an administrative 
order shall be conducted pursuant to the guidelines and procedures 
set out in § 9-10-108. 

(D) Any party to an administrative order for paternity testing may 
object to the administrative order within twenty (20) days after 
receiving the order and request an administrative hearing to deter- 



107 PATERNITY 9-10-103 

mine if paternity testing under the administrative order should be 

conducted by the office. 

(3) The request for paternity testing shall be accompanied by: 

(A) An affidavit alleging paternity, and setting forth facts estab- 
lishing a reasonable possibility of the requisite sexual contact be- 
tween the mother and putative father; or 

(B) An affidavit denying paternity and setting forth facts estab- 
lishing a reasonable possibility of the nonexistence of sexual contact 
between the mother and putative father. 

(4)(A) The office shall initially pay the costs of administrative pater- 
nity testing, but those costs shall be assessed against the putative 
father if paternity is established or against the applicant for services 
if the putative father is excluded as the biological father. 

(B) Recovery by the office through all available processes shall be 
initiated, including income withholding, when appropriate. 

(5) Any party who objects to the results of such paternity testing may 
request additional testing upon proper notice and advance payment for 
retesting, and the office shall assist the contestant in obtaining such 
additional testing as may be requested. 

(6) If the results of paternity testing establish a ninety-five percent 
(95%) or more probability of inclusion that the putative father is the 
biological father of the child, the office may file a complaint for paternity 
and child support in the circuit court. 

(c) Any paternity testing results obtained pursuant to an adminis- 
trative order for paternity testing shall be admissible into evidence in 
any circuit court for the purpose of adjudicating paternity, as provided 
by§ 9-10-108. 

(d) If the results of paternity testing exclude an alleged parent from 
being the biological parent of the child, the office shall issue an 
administrative determination that declares that the excluded person is 
not a parent of the child. 

(e) If the mother should die before the final order, the action may be 
revived in the name of the child, and the mother's testimony at the 
temporary hearing may be introduced in the final hearing. 

(f) Upon motion by a party, the court shall issue a temporary child 
support order in accordance with this chapter, the guidelines for child 
support, and the family support chart, when paternity is disputed and 
a judicial or administrative determination of paternity is pending, if 
there is clear and convincing genetic evidence of paternity. 

History. Acts 1875 (Adj. Sess.), No. 24, fective July 1, 2001, abolished chancery 

§ 4, p. 25; 1879, No. 72, § 2, p. 95; C. & M. courts and established circuit courts as 

Dig., § 775; Pope's Dig., § 931; Acts 1955, the trial courts of original jurisdiction. 

No. 374, § 1; A.S.A. 1947, § 34-704; Acts The jurisdiction of the circuit courts now 

1997, No. 1296, § 4; 2001, No. 1248, includes "all matters previously cogni- 

§§ 1-3; 2003, No. 1185, § 11. zaD l e by Circuit, Chancery, Probate and 

A.C.R.C. Notes. Ark. Const., Amend. Juvenile Court...." 
80, adopted by voter referendum and ef- 



9-10-104 



FAMILY LAW 
CASE NOTES 



108 



Applicability. 

This section applies to paternity tests 
ordered by the Office of Child Support 
Enforcement and not to tests ordered by 
the court; § 9-10-108 specifically deals 
with court-ordered paternity tests and, 
more importantly, while some language in 
this section incorporates the procedures of 



§ 9-10-108, there is no language in § 9- 
10-108 incorporating the protections of 
this section. State Office of Child Support 
Enforcement v. Morgan, 364 Ark. 358, 219 
S.W.3d 175 (2005). 

Cited: Dozier v. Veasley, 272 Ark. 210, 
613 S.W.2d 93 (1981). 



9-10-104. Suit to determine paternity of child born outside of 
marriage. 

Petitions for paternity establishment may be filed by: 

(1) A biological mother; 

(2) A putative father; 

(3) A person for whom paternity is not presumed or established by 
court order, including a parent or grandparent of a deceased putative 
father; or 

(4) The Office of Child Support Enforcement of the Revenue Division 
of the Department of Finance and Administration. 



History. Acts 1981, No. 664, §§ 1, 2; 
A.S.A. 1947, §§ 34-716, 34-717; Acts 1989, 
No. 725, § 4; 1995, No. 1184, § 1; 2009, 
No. 1312, § 1. 



Amendments. The 2009 amendment 
inserted "including a parent or grandpar- 
ent of a deceased putative father" in (3). 



RESEARCH REFERENCES 



Ark. L. Notes. Flaccus, A Grab Bag of 
Recent Arkansas Cases, 1999 Ark. L. 
Notes 25. 

U. Ark. Little Rock L.J. Legislative 
Survey, Family Law, 4 U. Ark. Little Rock 
L.J. 595. 

Fifteenth Annual Survey of Arkansas 
Law, 15 U. Ark. Little Rock L.J. 427. 

U. Ark. Little Rock L. Rev. Annual 



Survey of Caselaw, Family Law, 24 U. 
Ark. Little Rock L. Rev. 1021. 

Note: Family Law-Putative Fathers and 
the Presumption of Legitimacy-Adams 
and the Forbidden Fruit: Clashes Be- 
tween the Presumption of Legitimacy and 
the Rights of Putative Fathers in Arkan- 
sas, 25 U. Ark. Little Rock L. Rev. 369. 



CASE NOTES 



Analysis 

In General. 

Burden of Proof. 

Defenses. 

Presumptions. 

Procedure. 

Standing. 

In General. 

It is not against the public policy of this 
state to allow a third party to attempt to 



illegitimize a child which was conceived, 
but not born during marriage. Willmon v. 
Hunter, 297 Ark. 358, 761 S.W.2d 924 

(1988). 

Burden of Proof. 

In a paternity proceeding brought 
against a living putative father, even in 
the absence of blood testing, the mother's 
burden of proof is a mere preponderance 
of the evidence, as the proceeding is civil 
in nature. Erwin L.D. v. Myla Jean L., 41 



109 



PATERNITY 



9-10-104 



Ark. App. 16, 847 S.W.2d 45 (1993). 

Defenses. 

A mother's agreement or assurances 
that she would not pursue a paternity 
action to request support cannot validly 
be interposed by a putative father as a 
defense. Erwin L.D. v. Myla Jean L., 41 
Ark. App. 16, 847 S.W.2d 45 (1993). 

Misrepresentation concerning the use of 
contraceptives is not a defense to pater- 
nity; to permit this defense would result 
in the denial of support to innocent chil- 
dren whom the law was designed to pro- 
tect. Erwin L.D. v. Myla Jean L., 41 Ark. 
App. 16, 847 S.W.2d 45 (1993). 

Presumptions. 

Neither Lord Mansfield's Rule, which 
provides that the declarations of a father 
or mother cannot be admitted to bastard- 
ize the issue born after marriage, nor the 
presumption of legitimacy of children 
born during the wedlock of two persons, 
apply where the child is born out of wed- 
lock. Dunn v. Davis, 291 Ark. 492, 725 
S.W.2d 853 (1987). 

Presumption of legitimacy of a child 
conceived, but not born, during marriage, 
is rebuttable. Willmon v. Hunter, 297 Ark. 
358, 761 S.W.2d 924 (1988). 

Chancellor did not err in ordering a 
paternity test pursuant to this section, as 
public policy does not forbid the rebuttal 
of the presumption of legitimacy by pater- 
nity testing. Golden v. Golden, 57 Ark. 
App. 143, 942 S.W.2d 282 (1997). 

Procedure. 

Trial court erred in dismissing a pater- 
nity complaint on the basis of collateral 
estoppel or res judicata when the alleged 
biological father of the child was not a 
party, and was not in privy to a party, in 
an earlier divorce decree proclaiming the 
mother's husband to be the father of the 
child, and the matter of paternity had not 
been fully or fairly litigated in the earlier 
divorce action. State Office of Child Sup- 
port Enforcement v. Willis, 347 Ark. 6, 59 
S.W.3d 438 (2001). 

Standing. 

A child conceived and born of a mar- 
riage, and thus presumed to be the child of 



the marital partners, has no standing to 
bring a paternity action. Hall v. Freeman, 
327 Ark. 148, 936 S.W.2d 761 (1997). 

The presumption of legitimacy of a child 
born during marriage is the presumption 
to which reference is made in subdivision 
(3) of this section; the General Assembly 
has seen fit to preserve it as a bar to an 
action by a child born during a marriage. 
Hall v. Freeman, 327 Ark. 148, 936 S.W.2d 
761 (1997). 

Because the legislature was presumed 
to have known of prior Supreme Court 
decisions when it amended this section, a 
putative father had standing to bring an 
action to determine the paternity of a 
child born to a woman married to another. 
R.N. v. J.M., 347 Ark. 203, 61 S.W.3d 149 
(2001). 

Father who moved to annul a 1966 
adoption, on grounds the father was 
fraudulently induced into believing the 
child was the father's biological child, was 
adjudicated to be the biological father in 
the adoption decree and did not fit within 
the statutorily-defined group of individu- 
als upon whom standing was conferred to 
challenge paternity; thus, the trial court 
properly denied the father's request for 
paternity testing. McAdams v. McAdams, 
353 Ark. 494, 109 S.W.3d 649 (2003). 

Father's argument that custodian of the 
child did not have standing to bring a 
paternity action was irrelevant as the 
plaintiff listed in all the pleadings was the 
Office of Child Support Enforcement 
(OCSE), and the OCSE had the authority 
under this section to bring a paternity 
action. Watt v. Office of Child Support 
Enforcement, 364 Ark. 236, 217 S.W3d 
785 (2005). 

Cited: Roque v. Frederick, 272 Ark. 
392, 614 S.W.2d 667 (1981); Fuller v. Rob- 
inson, 279 Ark. 252, 650 S.W2d 585 
(1983); In re S.J.B., 294 Ark. 598, 745 
S.W2d 606 (1988); Department of Human 
Servs. ex rel. Davis v. Seamster, 36 Ark. 
App. 202, 820 S.W2d 298 (1991); State 
Office of Child Support Enforcement v. 
Harnage, 322 Ark. 461, 910 S.W2d 207 
(1995). 



9-10-105 FAMILY LAW 110 

9-10-105. Trial by court. 

When the case is ready for trial, if the accused denies being the father 
of the child, the circuit court shall hear the evidence and decide the 
case. 



History. Acts 1875 (Adj. Sess.), No. 24, 
§ 5, p. 25; 1879, No. 72, § 3, p. 95; C. & M. 
Dig., § 776; Pope's Dig., § 932; Acts 1955, 
No. 374, § 2; A.S.A. 1947, § 34-705; Acts 
2003, No. 1185, § 12. 

A.C.R.C. Notes. Ark. Const., Amend. 
80, adopted by voter referendum and ef- 



fective July 1, 2001, abolished chancery 
courts and established circuit courts as 
the trial courts of original jurisdiction. 
The jurisdiction of the circuit courts now 
includes "all matters previously cogni- 
zable by Circuit, Chancery, Probate and 
Juvenile Court...." 



RESEARCH REFERENCES 



U. Ark. Little Rock L.J. Survey of 
Arkansas Law, Family Law, 1 U. Ark. 
Little Rock L.J. 200. 



CASE NOTES 



Analysis 

Child Support. 
Jury Trial. 

Child Support. 

A putative father in a paternity case 
adjudged to pay less than the statutory 
minimum for the child's support was held 
not entitled to attack the validity of the 
paternity statute on the ground that it 



does not provide for a jury to fix the 
amount paid. Swaim v. State, 184 Ark. 
1107, 44 S.W.2d 1098 (1932). 

Jury Trial. 

Since a paternity proceeding was essen- 
tially an action at law for the recovery of 
money, the appellant was entitled to a 
jury trial on the issues of fact. Waddell v. 
State, 235 Ark. 293, 357 S.W.2d 651 
(1962). 



9-10-106. [Repealed.] 



Publisher's Notes. This section, con- 
cerning paternity referees, was repealed 
by Acts 1993, No. 1242, § 2. The section 



was derived from Acts 1997, No. 363, § 1; 
1983, No. 559, § 1; A.S.A. 1947, § 34- 
701.1. 



9-10-107. [Repealed.] 



Publisher's Notes. This section, con- 
cerning hearings for enforcement of sup- 
port orders, was repealed by Acts 1995, 
No. 1064, § 2. The section was derived 
from Acts 1985, No. 988, § 4; 1986 (2nd 



Ex. Sess.), No. 14, § 1; A.S.A. 1947, § 34- 
701.2; Acts 1993, No. 1242, § 3; 1995, No. 
1184, §§ 1, 3. For present law, see § 9-14- 
204. 



9-10-108. Paternity test. 

(a)(1) Upon motion of either party in a paternity action, the trial 
court shall order that the putative father, mother, and child submit to 
scientific testing for paternity, which may include deoxyribonucleic acid 
testing, to determine whether or not the putative father can be excluded 



Ill PATERNITY 9-10-108 

as being the biological father of the child and to establish the probabil- 
ity of paternity if the testing does not exclude the putative father. 
(2)(A) Upon motion of either party in a paternity action when the 
mother is deceased or unavailable, the trial court shall order that the 
putative father and child submit to scientific testing for paternity, 
which may include deoxyribonucleic acid typing, to determine 
whether or not the putative father can be excluded as being the 
biological father of the child and to establish the probability of 
paternity if the testing does not exclude the putative father. 

(B) If a maternal relative is available and willing to participate in 
paternity testing, the trial court shall include the maternal relative 
within its order for paternity testing. 

(3)(A) Upon motion of either party in a paternity action when the 
father is deceased or unavailable, the trial court shall order that the 
mother and child submit to scientific testing for paternity, which may 
include deoxyribonucleic acid typing, to determine whether or not the 
putative father can be excluded as being the biological father of the 
child and to establish the probability of paternity if the testing does 
not exclude the putative father. 

(B) If a paternal relative is available and willing to participate in 
paternity testing, the trial court shall include the paternal relative 
within its order for paternity testing. 

(4) The tests shall be made by a duly qualified expert or experts to be 
appointed by the court. 

(5)(A) A written report of the test results prepared by the duly 
qualified expert conducting the test or by a duly qualified expert 
under whose supervision or direction the test and analysis have been 
performed certified by an affidavit duly subscribed and sworn to by 
him or her before a notary public may be introduced in evidence in 
paternity actions without calling the expert as a witness unless a 
motion challenging the test procedures or results has been filed 
within thirty (30) days of the trial on the complaint and bond is 
posted in an amount sufficient to cover the costs of the duly qualified 
expert to appear and testify. 

(B)(i) If contested, documentation of the chain of custody of 
samples taken from test subjects in paternity testing shall be verified 
by affidavit of one (1) person witnessing the procedure or extraction, 
packaging, and mailing of the samples and by one (1) person signing 
for the samples at the place where the samples are subject to the 
testing procedure. 

(ii) Submission of the affidavits along with the submission of the 
test results shall be competent evidence to establish the chain of 
custody of these specimens. 

(6)(A) If the results of the paternity tests establish a ninety-five 
percent (95%) or more probability of inclusion that the putative 
father is the biological father of the child after corroborating testi- 
mony of the mother in regard to access during the probable period of 
conception, it shall constitute a prima facie case of establishment of 



9-10-108 FAMILY LAW 112 

paternity, and the burden of proof shall shift to the putative father to 
rebut that proof. 

(B) If the results of the paternity tests conducted pursuant to 
subdivision (a)(2) of this section establish a ninety-five percent (95%) 
or more probability of inclusion that the putative father is the 
biological father of the child, after corroborating testimony concern- 
ing the conception, birth, and history of the child, this shall constitute 
a prima facie case of establishment of paternity, and the burden of 
proof shall shift to the putative father to rebut that proof. 

(7) Whenever the court orders scientific testing for paternity and one 
(1) of the parties refuses to submit to the testing, that fact shall be 
disclosed upon the trial and may be considered civil contempt of court. 

(8) The costs of the scientific testing for paternity and witness fees 
shall be taxed by the court as other costs in the case. 

(9) Whenever it shall be relevant to the prosecution or the defense in 
a paternity action, scientific testing for paternity that excludes third 
parties as the biological father of the child may be introduced under the 
same requirements as set out in this section. 

(b) The appearance of the name of the father with his consent on the 
certificate of birth, the social security account number of the alleged 
father filed with his consent with the Division of Vital Records of the 
Department of Health pursuant to § 20-18-407, a certified copy of the 
certificate or records on which the name of the alleged father was 
entered with his consent from the vital records department of another 
state, or the registration of the father with his consent in the Putative 
Father Registry pursuant to § 20-18-702 shall constitute a prima facie 
case of establishment of paternity, and the burden of proof shall shift to 
the putative father to rebut such in a proceeding for paternity estab- 
lishment. 

History. Acts 1955, No. 127, §§ 1-3; 705.1 — 34-705.3; Acts 1989, No. 725, § 2; 
1981, No. 473, § 1; 1983, No. 437, § 1; 1991, No. 474, § 2; 1991, No. 986, § 1; 
1985, No. 988, § 1; A.S.A. 1947, §§ 34- 1995, No. 1178, § 1. 

RESEARCH REFERENCES 

Ark. L. Rev. Blood Tests in Paternity Identification Purposes in Rape Trial, 12 

Proceedings, 9 Ark. L. Rev. 395. U. Ark. Little Rock L.J. 543. 

Recent Developments, 45 Ark. L. Rev. Survey, Miscellaneous — Evidence, 13 

257. U. Ark. Little Rock L.J. 384. 

Recent Developments, Domestic Rela- Survey — Family Law, 14 U. Ark. Little 

tions — Adoption, 57 Ark. L. Rev. 697. Rock L.J. 799. 

U. Ark. Little Rock L.J. Legislative U. Ark. Little Rock L. Rev. Note: 

Survey, Family Law, 4 U. Ark. Little Rock Family Law-Putative Fathers and the 

L.J. 595. Presumption of Legitimacy- Adams and 

Survey — Family Law, 11 U. Ark. Little the Forbidden Fruit: Clashes Between the 

Rock L.J. 215. Presumption of Legitimacy and the Rights 

Note, Evidence — Criminal Law — Evi- of Putative Fathers in Arkansas, 25 U. 

dence of DNA Fingerprinting Admitted for Ark. Little Rock L. Rev. 369. 



113 



PATERNITY 
CASE NOTES 



9-10-108 



Analysis 

Constitutionality. 
In General. 
Additional Tests. 
Admissibility. 
Appeals. 
Burden of Proof. 
Certification. 
Chain of Custody. 
Corroboration. 
Cross-Examination. 
Evidence. 
Expert Witnesses. 
Foreign Judgment. 
Genetic Testing. 
Identity of Test-Giver. 
Notice of Objection. 
Right to Counsel. 
Sufficiency. 

Constitutionality. 

Trial court ruling that utilizing this 
section to allow blood tests in evidence 
only to exclude paternity was not a denial 
of equal protection and that blood tests 
would not be admitted to establish pater- 
nity was evidentiary and thus not an 
appealable order. Story v. Hodges, 272 
Ark. 365, 614 S.W.2d 506 (1981). 

In General. 

The claim of child support enforcement 
against putative father was an original 
action to establish paternity, as opposed to 
an action to modify a paternity order 
under § 9-10-115, and the judge correctly 
found paternity pursuant to subdivision 
(a)(6)(B) of this section. Bean v. Office of 
Child Support Enforcement, 340 Ark. 286, 
9 S.W.3d 520 (2000). 

Statute granting trial courts authority 
to order a paternity test made an express 
distinction between the type of testimony 
required when the mother was alive and 
when the mother was deceased; subdivi- 
sion (a)(2)(A) of this section instructs that, 
upon motion of either party in a paternity 
action when the mother was deceased or 
unavailable, the trial court could order the 
putative father and child to submit to 
scientific testing for paternity. Watt v. Of- 
fice of Child Support Enforcement, 364 
Ark. 236, 217 S.W.3d 785 (2005). 

Where the putative father and the 
child's mother had a brief romantic rela- 



tionship, he did not know the mother was 
pregnant and did not see or talk to her 
after the encounter, and at the time an 
adoption petition was filed he had not 
registered with the putative-father regis- 
try, the putative father was not statutorily 
entitled to notice of the adoption proceed- 
ing. Escobedo v. Nickita, 365 Ark. 548, 231 
S.W3d 601 (2006). 

Additional Tests. 

Though subdivision (a)(5) of this section 
does not explicitly provide procedures for 
requesting additional court-ordered tests, 
the statute also does not exclude such a 
possibility; in light of the legislative intent 
that paternity of the children be estab- 
lished in the most expedient manner for 
all children of Arkansas, the circuit courts 
have wide discretion to take actions to 
resolve the question of paternity and may 
require a party requesting an additional 
paternity test to prove that the first test 
was defective before the court can compel 
a second paternity test. State Office of 
Child Support Enforcement v. Morgan, 
364 Ark. 358, 219 S.W3d 175 (2005). 

Section 9-10-103 applies to paternity 
tests ordered by the Office of Child Sup- 
port Enforcement and not to tests ordered 
by the court; this section specifically deals 
with court-ordered paternity tests and, 
more importantly, while some language in 
§ 9-10-103 incorporates the procedures of 
this section, there is no language in this 
section incorporating the protections of 
§ 9-10-103. State Office of Child Support 
Enforcement v. Morgan, 364 Ark. 358, 219 
S.W.3d 175 (2005). 

Admissibility. 

The trial court erred in allowing into 
evidence two blood tests which did not 
exclude defendant as being the father, for 
the purpose of showing that he was the 
father. Winston v. Robinson, 270 Ark. 996, 
606 S.W.2d 757 (1980). 

Fact of refusal to take blood test is 
admissible. Cox v. Farrell, 292 Ark. 177, 
728 S.W2d 954 (1987). 

Blood tests inadmissible where person 
who verified test results did not perform 
them. This section requires that person 
performing blood test make verification 
thereon. Tolhurst v. Reynolds, 21 Ark. 
App. 94, 729 S.W2d 25 (1987). 



9-10-108 



FAMILY LAW 



114 



Where a paternity test was required to 
be notarized under subdivision (a)(5)(A) of 
this section, it was a self-authenticating 
document under Evid. Rule 902(8) and 
plaintiff was not required to produce any 
extrinsic evidence of authenticity as a 
condition precedent to admissibility. Bar- 
nes v. Barnes, 311 Ark. 287, 843 S.W2d 
835 (1992). 

Appeals. 

In a suit alleging paternity, an order for 
the defendant to report for paternity blood 
testing under this section is not final, and 
therefore not appealable under 
ARAP(a)(2). Helton v. Arkansas Dep't of 
Human Servs., 309 Ark. 268, 828 S.W.2d 
842 (1992). 

Burden of Proof. 

In a paternity proceeding brought 
against a living putative father, the moth- 
er's burden of proof is a mere preponder- 
ance of the evidence, as the proceeding is 
civil in nature. Stewart v. Winfrey, 308 
Ark. 277, 824 S.W2d 373 (1992); Barnes v. 
Barnes, 311 Ark. 287, 843 S.W.2d 835 
(1992); Erwin L.D. v. Myla Jean L., 41 
Ark. App. 16, 847 S.W2d 45 (1993). 

A Roche blood-test report finding a 
99.98% probability that defendant was 
the father of plaintiffs child, along with 
the corroborating testimony of plaintiff, 
constituted a prima facie case of establish- 
ment of paternity; defendant had the bur- 
den of rebutting this proof. Bain v. State, 
56 Ark. App. 7, 937 S.W2d 670 (1997). 

If the results of the paternity tests con- 
ducted pursuant to subdivision (a)(2) of 
this section establish a ninety-five percent 
(95%) or more probability of inclusion that 
the putative father is the biological father 
of the child, and there is corroborating 
testimony concerning the conception, 
birth, and history of the child, a prima 
facie case of establishment of paternity is 
created, and the burden of proof shall shift 
to the putative father to rebut such proof. 
Bean v. Office of Child Support Enforce- 
ment, 340 Ark. 286, 9 S.W3d 520 (2000). 

Certification. 

Although subsection (a) of this section 
was amended to allow for certification by 
an expert under whose supervision or di- 
rection the test has been performed, the 
statements by the signatory of the report, 
that she was a director of the laboratory 
and that she had read the report, also fell 



short of meeting the foundational prereq- 
uisites for admission under the amended 
version. Bain v. State, 56 Ark. App. 7, 937 
S.W.2d 670 (1997). 

Chain of Custody. 

Like a challenge of the test procedures 
or results pursuant to subdivision 
(a)(5)(A) of this section, subdivision 
(a)(5)(B)(i) of this section requires a con- 
test on chain-of-custody grounds within 
30 days of trial. Parks v. Ewans, 316 Ark. 
91, 871 S.W2d 343 (1994). 

Corroboration. 

Since subdivision (a)(6)(A) of this sec- 
tion requires corroborating testimony of 
access from the mother, where mother's 
affidavit providing corroboration was not 
proffered, the statutory presumption 
never arose. State v. Rogers, 50 Ark. App. 
108, 902 S.W2d 243 (1995). 

Cross-Examination. 

The trial court was correct in ruling 
that laboratory report was not admissible, 
since the persons who performed the blood 
tests at the laboratory were not available 
for cross-examination. Chandler v. Baker, 
16 Ark. App. 253, 700 S.W.2d 378 (1985). 

Evidence. 

Although putative father attempted to 
rebut the evidence of paternity by offering 
the Affidavit of Birth Out of Wedlock and 
birth certificate as evidence that someone 
else was the father, his rebuttal failed, 
because under the law applicable when 
those documents were executed, they con- 
stituted presumptive evidence of pater- 
nity only, not conclusive evidence. Bean v. 
Office of Child Support Enforcement, 340 
Ark. 286, 9 S.W3d 520 (2000). 

Expert Witnesses. 

In a paternity action, no prejudicial 
error found in plaintiffs examination of 
expert witness who administered blood 
test. Bradley v. Houston, 12 Ark. App. 351, 
676 S.W.2d 746 (1984). 

A.R.C.P. Rule 26(e), regarding supple- 
mentation of responses concerning expert 
witness, did not apply where court had 
ordered defendant and child to undergo 
blood tests. Bradley v. Houston, 12 Ark. 
App. 351, 676 S.W.2d 746 (1984). 

Defendant failed to request expert wit- 
ness's appearance within a reasonable 
time prior to trial where defendant made 
the request to cross-examine the expert 



115 



PATERNITY 



9-10-108 



who lived out-of-state only six business 
days before trial. Barnes v. Barnes, 311 
Ark. 287, 843 S.W.2d 835 (1992). 

Foreign Judgment. 

As the North Carolina courts would give 
res judicata effect to its finding of pater- 
nity in a divorce judgment in its courts, 
the Arkansas court was required to do 
likewise under the constitutional com- 
mand of full faith and credit in denying 
the defendant's motion for blood testing. 
Benac v. State, 34 Ark. App. 238, 808 
S.W.2d 797 (1991). 

Defendant failed to request expert wit- 
ness's appearance within a reasonable 
time prior to trial where defendant made 
the request to cross-examine the expert 
who lived out-of-state only six business 
days before trial. Barnes v. Barnes, 311 
Ark. 287, 843 S.W.2d 835 (1992). 

Genetic Testing. 

In light of the fact that recently devel- 
oped genetic testing can, with a high de- 
gree of certainty, identify the father of a 
child, and be viewed as conclusive by the 
fact-finder in paternity suits, strict adher- 
ence to the statutory foundational prereq- 
uisites is not unreasonable. Ross v. Moore, 
30 Ark. App. 207, 785 S.W.2d 243 (1990). 

Circuit court did not err in denying the 
request for an additional paternity test 
because the Office of Child Support En- 
forcement presented no evidence that the 
first paternity test was untrustworthy or 
defective; however, the circuit court did 
not expressly determine that a dismissal 
with prejudice was in the best interests of 
the child as, at the time of the trial, 
paternity had not been established for the 
child and the only effect of a dismissal 
with prejudice was to permanently ex- 
clude appellee from further paternity test- 
ing. State Office of Child Support Enforce- 
ment v. Morgan, 364 Ark. 358, 219 S.W.3d 
175 (2005). 

Identity of Test-Giver. 

Although the chancery court has broad 
discretion in determining whether blood 
test reports should be admitted into evi- 
dence, chancellor abused his discretion by 
admitting report that contained nothing 
to indicate the identity of the person who 
performed the test or whether the person 
who performed the test was a duly quali- 
fied expert, and was signed by the labora- 
tory director and scientific director respec- 



tively, but did not indicate that these two 
men performed the test or that they were 
qualified experts. Boyles v. Clements, 302 
Ark. 575, 792 S.W.2d 311 (1990). 

Blood test inadmissible where there 
was nothing in the report to indicate the 
identity of the person who performed the 
test or whether the person who performed 
the test was a duly qualified expert. Ross 
v. Moore, 30 Ark. App. 207, 785 S.W.2d 243 
(1990). 

Notice of Objection. 

Putative father was not required to give 
30 days' notice in order to object to admis- 
sion of a blood test report; such notice is 
required only where the chain of custody, 
test procedures, or results are contested. 
Bain v. State, 56 Ark. App. 7, 937 S.W.2d 
670 (1997). 

Right to Counsel. 

Putative father's physical liberty was 
not in jeopardy at the initial hearing when 
he was ordered to submit to a paternity 
test; thus, he was not guaranteed the 
right to counsel in the paternity proceed- 
ing. Burrell v. Arkansas Dep't of Human 
Servs., 41 Ark. App. 140, 850 S.W.2d 8 
(1993). 

Sufficiency. 

Evidence of blood tests was sufficient to 
establish that husband was not father of 
wife's child. Richardson v. Richardson, 
252 Ark. 244, 478 S.W.2d 423 (1972). 

Where the blood tests showed a 99.27% 
probability that the putative father was 
the father, he was living with the mother 
during the probable period of conception, 
and the mother stated she was not in- 
volved with anyone else at that time, this 
evidence gave her a statutory presump- 
tion of paternity. Stewart v. Winfrey, 308 
Ark. 277, 824 S.W.2d 373 (1992). 

Blood test showing a 99.59% probability 
that defendant was the natural father, 
coupled with the mother's testimony re- 
garding access during the probable period 
of conception, gave rise to a statutory 
presumption of paternity which was not 
rebutted by the father. Barnes v. Barnes, 
311 Ark. 287, 843 S.W2d 835 (1992). 

Where written blood test report did not 
comply with the foundational prerequi- 
sites set forth in subdivision (a)(5)(A), it 
could not be admitted into evidence. Bain 
v. State, 56 Ark. App. 7, 937 S.W2d 670 
(1997). 



9-10-109 FAMILY LAW 116 

Cited: George v. George, 247 Ark. 17, Support Enforcement Unit, 326 Ark. 677, 

444 S.W.2d 62 (1969); Dunn v. Davis, 291 933 S.W.2d 798 (1996); Blankenship v. 

Ark. 492, 725 S.W.2d 853 (1987); Laden v. Office of Child Support Enforcement, 58 

Morgan, 303 Ark. 585, 798 S.W.2d 678 Ark. App. 260, 952 S.W.2d 173 (1997); In 

(1990); Roe v. State, 304 Ark. 673, 804 re SCD, 358 Ark. 51, 186 S.W.3d 225 

S.W.2d 708 (1991); Green v. Bell, 308 Ark. (2004) 
473, 826 S.W.2d 226 (1992); Davis v. Child 

9-10-109. Child support following finding of paternity. 

(a)(1)(A) Subsequent to the execution of an acknowledgment of 
paternity by the father and mother of a child pursuant to § 20-18-408 
or § 20-18-409, or a similar acknowledgment executed during the 
child's minority, or subsequent to a finding by the court that the 
putative father in a paternity action is the father of the child, the 
court shall follow the same guidelines, procedures, and requirements 
as set forth in the laws of this state applicable to child support orders 
and judgments entered by the circuit court as if it were a case 
involving a child born of a marriage in awarding custody, visitation, 
setting amounts of support, costs, and attorney's fees, and directing 
payments through the clerk of the court, or through the Arkansas 
child support clearinghouse if the case was brought pursuant to Title 
IV-D of the Social Security Act. 

(B) All child support payments paid by income withholding shall 
be subject to the provisions set forth in § 9-14-801 et seq. 

(2) The court may provide for the payment of support beyond the 
eighteenth birthday of the child to address the educational needs of a 
child whose eighteenth birthday falls prior to graduation from high 
school so long as such support is conditional on the child's remaining in 
school. 

(3) The court may also provide for the continuation of support for an 
individual with a disability that affects the ability of the individual to 
live independently from the custodial parent. 

(b)(1)(A) All orders directing payments through the registry of the 
court or through the Arkansas child support clearinghouse shall set 
forth a fee to be paid by the noncustodial parent or obligated spouse 
in the amount of thirty-six dollars ($36.00) per year. 

(B) The fee shall be collected from the noncustodial parent or 

obligated spouse at the time of the first support payment and during 

the anniversary month of the entry of the order each year thereafter, 

or nine dollars ($9.00) per quarter at the option of the obligated 

parent, until no children remain minor and the support obligation is 

extinguished and any arrears are completely satisfied. 

(2) The clerk upon direction from the court and as an alternative to 

collecting the annual fee during the anniversary month each year after 

entry of the order may prorate the first fee collected at the time of the 

first payment of support under the order to the number of months 

remaining in the calendar year and thereafter collect all fees as 

provided in this subsection during the month of January of each year. 



117 PATERNITY 9-10-109 

(3)(A) Payments made for this fee shall be made on an annual basis 
in the form of a check or money order payable to the clerk of the court 
or other such legal tender that the clerk may accept. 

(B) This fee payment shall be separate and apart from the support 
payment, and under no circumstances shall the support payment be 
reduced to fulfill the payment of this fee. 

(4) Upon the nonpayment of the annual fee by the noncustodial 
parent within ninety (90) days, the clerk may notify the payor under the 
order of income withholding for child support who shall withhold the fee 
in addition to any support and remit it to the clerk. 

(5)(A) All moneys collected by the clerk as a fee as provided in this 
subsection shall be used by the clerk's office to offset administrative 
costs as a result of this subchapter. 

(B)(i) Until all necessary data processing equipment has been 
acquired, at least twenty percent (20%) of the moneys collected 
annually shall be used to purchase, maintain, and operate an 
automated data system for use in administering the requirements of 
this subchapter. 

(ii) The acquisition and update of software for the automated data 
system shall be a permitted use of these funds. 

(C)(i) All fees collected under this subsection shall be paid into the 
county treasury to the credit of the fund to be known as the "support 
collection costs fund". 

(ii) Moneys deposited into this fund shall be appropriated and 
expended for the uses designated in this subdivision (b)(5) by the 
quorum court at the direction of the clerk of the court. 

(c) The clerk of the court shall maintain accurate records of all 
support orders and payments under this section. 

(d) The clerk may accept the support payment in any form of cash or 
commercial paper, including personal checks, and may require that the 
custodial parent or nonobligated spouse be named as payee thereon. 



History. Acts 1979, No. 71, § 1; 1985 
No. 988, § 2; A.S.A. 1947, § 34-706.1 
Acts 1987, No. 599, § 2; 1989 (3rd Ex 
Sess.), No. 54, § 2; 1991, No. 1008, § 1 
1991, No. 1098, § 1; 1991, No. 1102, § 1 
1995, No. 1091, § 2; 1997, No. 208, § 6 



16, 17, 20, 22, 23, and 27 of the Arkansas 
Code Annotated of 1987." 

As amended by Acts 1999, No. 1514, 
subdivision (b)(1)(A) began: "Beginning 
January 1, 1998, and continuing thereaf- 
ter." Subdivision (b)(1)(B) ended: "Until 



1997, No. 1296, §§ 5, 6; 1999, No. 1514, January 1, 1998, all orders directing pay- 
§ 1. ments through the registry of the court or 
A.C.R.C. Notes. Acts 1997, No. 208, through the Arkansas child support clear- 
§ 1, codified as § 22-4-408, provided: inghouse shall set forth a fee to be paid by 
"Legislative intent and purpose. The Gen- the noncustodial parent or obligated 
eral Assembly hereby acknowledges that spouse in the amount of twenty-four dol- 
many of the laws relating to individuals lars ($24.00) per year." 
with disabilities are antiquated, function- Ark. Const., Amend. 80, adopted by 
ally outmoded, derogatory, ambiguous or voter referendum and effective July 1, 
are inconsistent with more recently en- 2001, abolished chancery courts and es- 
acted provisions of the law. Consequently, tablished circuit courts as the trial courts 
it is the intent of the General Assembly of original jurisdiction. The jurisdiction of 
and the purpose of this Act to clarify the the circuit courts now includes "all mat- 
relevant chapters of Titles 1, 6, 9, 13, 14, ters previously cognizable by Circuit, 



9-10-109 



FAMILY LAW 



118 



Chancery, Probate and Juvenile Court...." 
Publisher's Notes. Acts 1989 (3rd Ex. 
Sess.), No. 54, § 2, is also codified as 
§ 9-12-312. 



U.S. Code. Title IV-D of the Social 
Security Act, referred to in this section, is 
codified as 42 U.S.C. § 651 et seq. 



RESEARCH REFERENCES 



U. Ark. Little Rock L.J. Seventeenth 
Annual Survey of Arkansas Law — Fam- 
ily Law, 17 U. Ark. Little Rock L.J. 451. 



CASE NOTES 



Analysis 

Construction. 
Attorney Fees. 
Burden of Proof. 
Custody. 
Jurisdiction. 
Modifications. 
Public Policy. 

Construction. 

Subdivision (a)(1) of this section and 
§ 9-10-113(a) are congruous; the finding 
of paternity and the establishment of visi- 
tation therein is a final determination 
from which to use the same standards as 
other custody situations. Norwood v. Rob- 
inson, 315 Ark. 255, 866 S.W.2d 398 
(1993). 

Attorney Fees. 

Both subsection (a) of this section and 
§ 9-27-342(d) provide a statutory basis for 
awarding attorney's fees in paternity ac- 
tions. Beavers v. Vaughn, 41 Ark. App. 96, 
849 S.W.2d 6 (1993). 

The plain language of subdivision (a)(1) 
of this section limits an award of attor- 
ney's fees to proceedings in which the 
court finds the putative father to be the 
father of the child. Child Support Enforce- 
ment Unit v. Haller, 50 Ark. App. 10, 899 
S.W.2d 485 (1995). 

Where there was no finding that party 
was the father of the child, subdivision 
(a)(1) of this section does not provide a 
statutory basis to award attorney's fees. 
Child Support Enforcement Unit v. Haller, 
50 Ark. App. 10, 899 S.W.2d 485 (1995). 

Trial court did not abuse its discretion 
in denying mother's motion for attorney's 
fees in a paternity action; the trial court 
considered the proper factors in deciding 
the mother's attorney's fee motion and she 
failed to show an abuse of discretion by 



the trial court. Davis v. Williamson, 
Ark. 33, 194 S.W3d 197 (2004). 



359 



Burden of Proof. 

Fathers of illegitimate children should 
certainly bear the same burden as fathers 
of legitimate children born of marriage. 
Norwood v. Robinson, 315 Ark. 255, 866 
S.W.2d 398 (1993). 

Custody. 

Each parent has the right to request a 
change in custody; it is then that party's 
burden to show that there has been a 
change in circumstances since the original 
order establishing custody or that there 
were facts not presented at the initial 
hearing that would bear on the best inter- 
ests of the child. Norwood v. Robinson, 315 
Ark. 255, 866 S.W2d 398 (1993). 

It is not an unfair burden to require the 
biological father to prove a change of cir- 
cumstances when the law presumes the 
child shall be in the custody of the mother 
and the paternity order establishes visita- 
tion. Norwood v. Robinson, 315 Ark. 255, 
866 S.W.2d 398 (1993). 

Jurisdiction. 

Where defendant was found to be father 
of child in paternity case and ordered to 
pay support and mother subsequently 
filed a petition under the Revised Uniform 
Enforcement of Support Act seeking modi- 
fication of support order, petition was to 
be treated just as though it were a child 
support proceeding subsequent to a di- 
vorce, and in such a case, the chancery 
court that granted the divorce is the court 
that has continuing jurisdiction to modify 
the original allowance of child support. 
White v. Winston, 302 Ark. 345, 789 
S.W2d 459 (1990). 

Modifications. 

This section authorizes modifications 
from time to time in the continuing order 



119 



PATERNITY 



9-10-110 



of support but it does not authorize a 
modification of a finding of paternity. 
Wilkins v. Ford, 275 Ark. 469, 631 S.W.2d 
298 (1982). 

Public Policy. 

Insofar as the agreement represented 
an attempt to permanently deprive the 
child of support, it was void as against 



public policy. Paul M. v. Teresa M., 36 Ark. 
App. 116, 818 S.W.2d 594 (1991). 

Cited: Roe v. State, 304 Ark. 673, 804 
S.W.2d 708 (1991); Green v. Bell, 308 Ark. 
473, 826 S.W.2d 226 (1992); Rudolph v. 
Floyd, 309 Ark. 514, 832 S.W.2d 219 
(1992); Reed v. Glover, 319 Ark. 16, 889 
S.W.2d 729 (1994). 



9-10-110. Judgment for lying-in expenses — Commitment on 
failure to pay. 

(a) If it is found by the court that the accused is the father of the 
child, the court shall render judgment against him for the lying-in 
expenses in favor of the mother, person, or agency incurring the lying-in 
expenses, if claimed. 

(b) If the lying-in expenses are not paid upon the rendition of the 
judgment, together with all costs that may be adjudged against him in 
the case, then the court shall have the power to commit the accused 
person to jail until the lying-in expenses are paid, with all costs. 

(c)(1) Bills and invoices for pregnancy and childbirth expenses and 
paternity testing are admissible as evidence in the circuit court or 
juvenile division of circuit court without third-party foundation testi- 
mony if such bills or invoices are regular on their face. 

(2) Such bills or invoices shall constitute prima facie evidence of 
amounts incurred for such services or for testing on behalf of the child. 



History. Acts 1875 (Adj. Sess.), No. 24, 
§ 5, p. 25; 1879, No. 72, § 3, p. 95; C. & M. 
Dig., § 777; Acts 1927, No. Ill, § 1; 
Pope's Dig., § 933; Acts 1955, No. 236, 
§ 1; 1979, No. 718, § 1; 1983, No. 177, 
§ 1; A.S.A. 1947, § 34-706; Acts 1997, No. 
1296, § 7. 

A.C.R.C. Notes. Ark. Const., Amend. 



80, adopted by voter referendum and ef- 
fective July 1, 2001, abolished chancery 
courts and established circuit courts as 
the trial courts of original jurisdiction. 
The jurisdiction of the circuit courts now 
includes "all matters previously cogni- 
zable by Circuit, Chancery, Probate and 
Juvenile Court...." 



RESEARCH REFERENCES 



U. Ark. Little Rock L.J. Survey of 
Arkansas Law, Family Law, 1 U. Ark. 
Little Rock L.J. 200. 

Shively, Survey of Family Law, 3 U. Ark. 
Little Rock L.J. 223. 



Legislation of the 1983 General Assem- 
bly, Family Law, 6 U. Ark. Little Rock L.J. 
624. 



CASE NOTES 



Analysis 

Constitutionality. 

Purpose. 

Counsel. 

Determination of Liability. 



Discretion of Court. 
Proof. 

Constitutionality. 

This section does not discriminate on 
the basis of sex and does not violate the 
equal protection clause. Eaves v. Dover, 



9-10-111 



FAMILY LAW 



120 



291 Ark. 545, 726 S.W.2d 276 (1987), 

Purpose. 

The major purpose of Arkansas' filiation 
laws is to provide a process by which the 
putative father can be identified so that he 
may assume his equitable share of the 
responsibility to his child. Eaves v. Dover, 
291 Ark. 545, 726 S.W.2d 276 (1987). 

Counsel. 

While the statutes provide that the 
prosecuting attorney shall conduct the 
suit on behalf of the state on all appeals to 
the circuit court in cases of paternity, this 
does not mean that the mother of the child 
cannot have an attorney to represent her 
nor does it mean that the suit must be 
dismissed if the prosecuting attorney does 
not appear in the case. Epperson v. Sharp, 
222 Ark. 456, 261 S.W2d 267 (1953). 

Determination of Liability. 

Father has no vested right to have his 
liability determined by law as it existed 
when the child was born; this is not an ex 
post facto law. State ex rel. Woolems v. 
Davis, 178 Ark. 692, 11 S.W2d 479 (1928). 

Discretion of Court. 

The trial court has discretion in assess- 
ing the amount of any awards made under 
this section. Eaves v. Dover, 291 Ark. 545, 
726 S.W.2d 276 (1987). 

The court, in awarding lying-in ex- 
penses or attorney's fees under this sec- 
tion, may exercise its discretion in deter- 
mining the amount that father should 
bear, and in doing so, it may even consider 
the mother's financial means when mak- 
ing an award. Eaves v. Dover, 291 Ark. 
545, 726 S.W.2d 276 (1987). 

Proof. 

A judgment awarding lying-in expenses 
and maintenance of the child would not be 
reversed because there was no proof as to 
the amount of the expenses. Belford v. 
State, 96 Ark. 274, 131 S.W. 953 (1910). 



Trial court did not err in denying some 
of the expenses included in mother's claim 
for lying-in expenses as this section in- 
cludes expenses directly connected to the 
birth of a healthy infant and does not 
normally include items such as maternity 
clothes, lost wages, or counseling that are 
for the benefit of the mother; further, this 
section allows expenses to be paid to the 
person incurring the expense and the trial 
court would have considered a claim for 
medical expenses paid by the prospective 
adoptive parents, however, the mother 
failed to provide proof that she incurred 
the medical expenses allegedly paid by the 
adoptive parents. Taylor v. Finck, 363 Ark. 
183, 211 S.W3d 532 (2005). 

Trail court did not err in disallowing 
counseling expenses where nothing in the 
record indicated that the counseling was 
for her baby. Taylor v. Finck, 363 Ark. 183, 
211 S.W3d 532 (2005). 

Trail court did not err in disallowing 
expenses for maternity clothes since no 
Arkansas cases considered maternity 
clothes as lying-in expenses. Taylor v. 
Finck, 363 Ark. 183, 211 S.W3d 532 
(2005). 

Trail court did not err in disallowing 
medical expenses that had been paid by 
prospective adoptive parents where the 
mother failed to adequately prove that she 
had incurred the expenses allegedly paid. 
Taylor v. Finck, 363 Ark. 183, 211 S.W3d 
532 (2005). 

Trail court properly disallowed two 
medical bills for which a Medicaid claim 
was pending where the mother failed to 
show that the expenses had either been 
paid or incurred. Taylor v. Finck, 363 Ark. 
183, 211 S.W.3d 532 (2005). 

Cited: Dozier v. Veasley, 272 Ark. 210, 
613 S.W2d 93 (1981); Roque v. Frederick, 
272 Ark. 392, 614 S.W2d 667 (1981); 
Wilkins v. Ford, 275 Ark. 469, 631 S.W.2d 
298 (1982); Davis v. Child Support En- 
forcement Unit, 326 Ark. 677, 933 S.W.2d 
798 (1996). 



9-10-111. Judgment for child support — Bond. 

(a) If it is found by the circuit court that the accused is the father of 
the child and, if claimed by the mother, the circuit court or circuit judge 
shall give judgment for a monthly sum of not less than ten dollars 
($10.00) per month for every month from the birth of the child until the 
child attains eighteen (18) years of age. 



121 



PATERNITY 



9-10-111 



(b)(1) The court shall further order that the father enter into bond to 
the State of Arkansas in the penal sum of five hundred dollars ($500), 
with good and sufficient security. 

(2) The bond shall be void if the person or his executors or adminis- 
trators indemnify each county in this state from all costs and expenses 
for the maintenance or otherwise of the child while under eighteen (18) 
years of age and for the payment of the monthly payments that may be 
adjudged as provided in subsection (a) of this section. 

(3) Bonds shall be approved by the circuit judge and an entry made 
on the record of the conditions and the securities thereon. 

(c) If the person refuses or neglects to enter into bond with security 
as provided in this section, the circuit judge shall commit him to the jail 
of the county, there to remain until he complies with the order or until 
he is otherwise discharged according to law. 



History. Acts 1875 (Adj. Sess.), No. 24, 
§ 5, p. 25; 1879, No. 72, § 3, p. 95; C. & M. 
Dig., §§ 777, 778; Acts 1927, No. Ill, § 1; 
Pope's Dig., §§ 933, 934; Acts 1955, No. 
236, § 1; 1979, No. 718, § 1; 1983, No. 
177, § 1; A.S.A. 1947, §§ 34-706, 34-707. 

A.C.R.C. Notes. Ark. Const., Amend. 
80, adopted by voter referendum and ef- 



fective July 1, 2001, abolished chancery 
courts and established circuit courts as 
the trial courts of original jurisdiction. 
The jurisdiction of the circuit courts now 
includes "all matters previously cogni- 
zable by Circuit, Chancery, Probate and 
Juvenile Court...." 



RESEARCH REFERENCES 



U. Ark. Little Rock L.J. Survey of 
Arkansas Law, Family Law, 1 U. Ark. 
Little Rock L.J. 200. 

Shively, Survey of Family Law, 3 U. Ark. 
Little Rock L.J. 223. 



Legislation of the 1983 General Assem- 
bly, Family Law, 6 U. Ark. Little Rock L.J. 
624. 



CASE NOTES 



Analysis 

Counsel. 

Determination of Liability. 

Modification. 

Noncompliance. 

Police Power. 

Counsel. 

While the statutes provide that the 
prosecuting attorney shall conduct the 
suit on behalf of the state on all appeals to 
the circuit court in cases of paternity, this 
does not mean that the mother of the child 
cannot have an attorney to represent her 
nor does it mean that the suit must be 
dismissed if the prosecuting attorney does 
not appear in the case. Epperson v. Sharp, 
222 Ark. 456, 261 S.W.2d 267 (1953). 



Determination of Liability. 

Father has no vested right to have his 
liability determined by law as it existed 
when the child was born; this is not an ex 
post facto law. State ex rel. Woolems v. 
Davis, 178 Ark. 692, 11 S.W.2d 479 (1928). 

The trial court was not limited to 
amounts actually expended for past sup- 
port. Green v. Bell, 308 Ark. 473, 826 
S.W.2d 226 (1992). 

Modification. 

A general reservation of jurisdiction, in 
the absence of fraud or another ground 
listed under ARCP 60(c), will permit 
modification of a decree after 90 days only 
with respect to issues that were before the 
court in the original action. Beavers v. 
Vaughn, 41 Ark. App. 96, 849 S.W.2d 6 
(1993). 



9-10-112 FAMILY LAW 122 

Noncompliance. Land v. State, 84 Ark. 199, 105 S.W. 90 

Commitment of the putative father of (1907). 

an illegitimate child to jail indefinitely for Cited: Belford v. State, 96 Ark. 274, 

failure to pay sums to the prosecuting 131 S.W. 953 (1910); Dozier v. Veasley, 272 

witness and to furnish bond was held Ar j t< 2 10, 613 S.W.2d 93 (1981); Roque v. 

erroneous where the evidence disclosed Frederick 272 Ark. 392 614 S.W.2d 667 

that it was impossible for him to comply (19gl) . w - lkins v> Ford , 275 Ark. 469, 631 

with the order of the county court Hemby g W2d 29g (19g2) Watt y Qffice of ChM 

v State, 188 Ark. 586, 67 S.W2d 182 Support Enforcement? 364 ^ 236) 217 

(19<34) - S.W.3d 785 (2005). 

Police Power. 

Imprisonment under this statute is an 
exercise of police powers and not for debt. 

9-10-112. Income withholding — Delinquent noncustodial par- 
ent. 

(a)(1) Except as provided in subsection (b) of this section, all persons 
under court order on August 1, 1985, to pay support who become 
delinquent thereunder in an amount equal to the total court-ordered 
support payable for thirty (30) days shall be subject to income with- 
holding. 

(2)(A) In all orders that provide for the payment of money for the 
support of any child, the circuit court shall include a provision 
directing a payor to deduct from money, income, or periodic earnings 
due the noncustodial parent an amount that is sufficient to meet the 
periodic child support payments imposed by the court, plus an 
additional amount of not less than twenty percent (20%) of the 
periodic child support payment to be applied toward liquidation of 
any accrued arrearage due under the order. 

(B) The use of income withholding does not constitute an election 
of remedies and does not preclude the use of other enforcement 
remedies. 

(b)(1) Beginning October 1, 1989, in all cases brought pursuant to 
Title IV-D, the support orders issued or modified shall include a 
provision for immediate implementation of income withholding, absent 
a finding of good cause not to require immediate income withholding or 
a written agreement of the parties incorporated in the order setting 
forth an alternative agreement. Otherwise, it shall become effective 
under subsection (a) of this section following the procedure set forth in 
subsection (c) of this section, or as provided in subsection (d) of this 
section. 

(2) Beginning January 1, 1994, all support orders issued or modified 
shall include a provision for immediate implementation of income 
withholding absent a finding of good cause not to require immediate 
income withholding or a written agreement of the parties incorporated 
in the order setting forth an alternative agreement. 

(3) In all non-Title IV-D cases brought prior to January 1, 1994, the 
support order may include a provision for immediate implementation of 
income withholding, absent a finding of good cause not to require 



123 PATERNITY 9-10-113 

immediate withholding or a written agreement of the parties incorpo- 
rated in the order setting forth an alternative agreement. The judge of 
each division shall determine if all support orders shall be subject to the 
provisions of this section and shall enter a standing order setting forth 
the treatment of non-Title IV-D cases in that division prior to January 
1, 1994. 

(c) In activating an order of income withholding that did not become 
effective immediately, the court shall follow the same procedures and 
requirements as set forth in the laws of this state applicable to child 
support orders and judgments entered by the circuit court. 

(d) In cases brought pursuant to Title IV-D with support orders 
effective prior to October 1, 1989, income withholding may take effect 
immediately in any child support case at the request or upon the 
consent of the noncustodial parent. 

History. Acts 1983, No. 592, § 1; 1985, includes "all matters previously cogni- 

No. 988, § 3; A.S.A. 1947, § 34-706.2; zable by Circuit, Chancery, Probate and 

Acts 1989, No. 948, § 1; 1991, No. 1095, Juvenile Court...." 

§ 1; 1993, No. 396, § 3; 2003, No. 1020, U.S. Code. Title IV-D, referred to in 

§ 1. this section, refers to Title IV-D of the 

A.C.R.C. Notes. Ark. Const., Amend. Social Security Act, which is codified at 42 

80, adopted by voter referendum and ef- u.S.C. § 651 et seq. 

fective July 1, 2001, abolished chancery Cross References. Jurisdiction of cir- 

courts and established circuit courts as ^ CQurt ^ ^ Const Amend 80? §§ 6> 

the trial courts of original jurisdiction. -.q 
The jurisdiction of the circuit courts now 

RESEARCH REFERENCES 

U. Ark. Little Rock L.J. Legislation of 
the 1983 General Assembly, Family Law, 6 
U. Ark. Little Rock L.J. 624. 

CASE NOTES 

Cited: Cochran v. Cochran, 309 Ark. Dep't of Human Servs. v. Hardy, 316 Ark. 
604, 832 S.W.2d 252 (1992); Arkansas 119, 871 S.W.2d 352 (1994). 

9-10-113. Custody of child born outside of marriage. 

(a) When a child is born to an unmarried woman, legal custody of 
that child shall be in the woman giving birth to the child until the child 
reaches eighteen (18) years of age unless a court of competent jurisdic- 
tion enters an order placing the child in the custody of another party 

(b) A biological father, provided he has established paternity in a 
court of competent jurisdiction, may petition the circuit court in the 
county where the child resides for custody of the child. 

(c) The court may award custody to the biological father upon a 
showing that: 

(1) He is a fit parent to raise the child; 

(2) He has assumed his responsibilities toward the child by providing 
care, supervision, protection, and financial support for the child; and 



9-10-113 



FAMILY LAW 



124 



(3) It is in the best interest of the child to award custody to the 
biological father. 

(d) When in the best interest of a child, visitation shall be awarded in 
a way that assures the frequent and continuing contact of the child with 
the mother and the biological father. 



History. Acts 1981, No. 665, § 1; A.S.A. 
1947, § 34-718; Acts 1987, No. 488, § 1; 
1987, No. 667, § 1; 2003, No. 1185, § 13; 
2007, No. 654, § 1. 

A.C.R.C. Notes. Ark. Const., Amend. 
80, adopted by voter referendum and ef- 
fective July 1, 2001, abolished chancery 
courts and established circuit courts as 
the trial courts of original jurisdiction. 
The jurisdiction of the circuit courts now 
includes "all matters previously cogni- 
zable by Circuit, Chancery, Probate and 
Juvenile Court...." 

Publisher's Notes. Acts 1981, No. 665, 
§ 2, stated the General Assembly's find- 



ing and determination that, prior to June 
17, 1981, parents of illegitimate children 
were not being accorded equal protection 
of the law and that the United States 
Supreme Court had determined that both 
parents of an illegitimate child have a 
right to establish a parental and custodial 
relationship with the child. 

Amendments. The 2007 amendment 
substituted "child born outside of mar- 
riage" for "illegitimate child" in the sec- 
tion heading; and added (d). 

Cross References. Uniform Child- 
Custody Jurisdiction and Enforcement 
Act, § 9-19-101 et seq. 



RESEARCH REFERENCES 



U. Ark. Little Rock L.J. Legislative 
Survey, Family Law, 4 U. Ark. Little Rock 
L.J. 595. 

Arkansas Law Survey, Price, Civil Pro- 
cedure, 9 U. Ark. Little Rock L.J. 91. 



Survey — Family Law, 10 U. Ark. Little 
Rock L.J. 577. 

Seventeenth Annual Survey of Arkan- 
sas Law — Family Law, 17 U. Ark. Little 
Rock L.J. 451. 



CASE NOTES 



Analysis 

In General. 
Construction. 
Burden of Proof. 
Change in Circumstances. 
Custody to Third Party. 
Parental Fitness. 
Presumption of Custody. 
Venue. 

In General. 

Under this section, a biological father 
may petition for custody, provided that he 
has established paternity. Norwood v. 
Robinson, 315 Ark. 255, 866 S.W.2d 398 
(1993). 

Construction. 

Section 9-10-109(a)(l) and subsection 
(a) of this section are congruous; the find- 
ing of paternity and the establishment of 
visitation therein is a final determination 
from which to use the same standards as 
other custody situations. Norwood v. Rob- 



inson, 315 
(1993). 



Ark. 255, 866 S.W.2d 398 



Burden of Proof. 

Each parent has the right to request a 
change in custody; it is then that party's 
burden to show that there has been a 
change in circumstances since the original 
order establishing custody or that there 
were facts not presented at the initial 
hearing that would bear on the best inter- 
ests of the child. Norwood v. Robinson, 315 
Ark. 255, 866 S.W.2d 398 (1993). 

Fathers of illegitimate children should 
certainly bear the same burden as fathers 
of legitimate children born of marriage. 
Norwood v. Robinson, 315 Ark. 255, 866 
S.W.2d 398 (1993). 

Change in Circumstances. 

It is not an unfair burden to require the 
biological father to prove a change of cir- 
cumstances when the law presumes the 
child shall be in the custody of the mother 
and the paternity order establishes visita- 



125 



PATERNITY 



9-10-113 



tion. Norwood v. Robinson, 315 Ark. 255, 
866 S.W.2d 398 (1993). 

The chancellor did not err by charging 
father with showing a change of circum- 
stances since the last custody order, which 
the chancellor deemed the initial determi- 
nation of paternity, and adding this to the 
three requirements listed in subsection (c) 
of this section, since a "material change of 
circumstances" is required in other 
change of custody cases. Norwood v. Rob- 
inson, 315 Ark. 255, 866 S.W.2d 398 
(1993). 

Where a child was born outside of mar- 
riage and the father petitioned for a 
change of custody so that he could gain 
custody, although the appellate court had 
doubts about the father's alleged drug use, 
the circuit court, after weighing the evi- 
dence, properly decided that evidence ex- 
isted to support a finding of changed cir- 
cumstances, and determined that 
awarding custody of the child to the father 
was in the child's best interests. Cranston 
v. Carroll, 97 Ark. App. 23, 242 S.W.3d 643 
(2006). 

Order awarding custody of an illegiti- 
mate child to the child's father was upheld 
where the trial court did not err in not 
requiring the father to prove a material 
change of circumstances prior to the entry 
of the custody order; although an original 
visitation order did not set a future date 
for a custody hearing, the order was tem- 
porary in nature because it did not resolve 
the issue of custody. Harmon v. Wells, 98 
Ark. App. 355, 255 S.W3d 501 (2007). 

Custody to Third Party. 

An award of custody of a child to the 
child's grandmother, with liberal visita- 
tion to the father was appropriate, where 
(1) the biological mother surrendered cus- 
tody to the grandmother, (2) the father 
never voluntarily established his pater- 
nity and failed to assume his responsibili- 
ties toward the child for over 3 years, (3) 
the father recognized the difficulties he 
and his wife would face if there was an 
immediate removal of the child from the 
only home she had known, and (4) the 
grandmother also had custody of a half- 
sister of the child. Freshour v. West, 334 
Ark. 100, 971 S.W2d 263 (1998). 

Parental Fitness. 

The chancellor was clearly justified in 
denying father's motion to change custody 



where the clear evidence established that 
he had not assumed the responsibilities 
specified in subdivision (c)(2) of this sec- 
tion, even if he was deemed a fit parent in 
other respects. State Office of Child Sup- 
port Enforcement v. Mitchell, 61 Ark. App. 
54, 964 S.W.2d 218 (1998). 

Court properly awarded custody of child 
to the father where paternity was estab- 
lished, the father paid child support and 
was a fit parent, the mother was unem- 
ployed, and she failed to aid the facilita- 
tion of a relationship between the father 
and the child. Sheppard v. Speir, 85 Ark. 
App. 481, 157 S.W.3d 583 (2004). 

Court erred by awarding child custody 
to a father because the mother lived 
within her means, was receiving child 
support, was receiving legitimate govern- 
mental aid, and managed to run an inde- 
pendent household where she could be a 
full-time parent. Although the father had 
held down a full-time job for several years, 
had his family to support his parenting, 
and had taken responsibility for the child, 
he lived with his parents, he had a sister 
who could not be left alone with the child 
due to drug-abuse concerns, and he had no 
experience in raising a child. Sykes v. 
Warren, 99 Ark. App. 210, 258 S.W.3d 788 
(2007). 

Trial court properly awarded custody of 
a child to his biological father, pursuant to 
subsection (a) of this section, where the 
father had a clean, stable, loving environ- 
ment for the child; the child suffered from 
a dog bite wound and had dirty hygiene 
while in the care of his mother, whose 
religious beliefs and mental health were 
factors in the trial court's assessment of 
the child's best interests. Hicks v. Cook, 
103 Ark. App. 207, 288 S.W3d 244 (2008). 

Presumption of Custody. 

Before 1987, no provisions for presump- 
tion of custody were in this section, and 
either parent of an illegitimate child could 
petition for custody under the same three 
criteria; however, in 1987, the legislature 
changed this section be adding a presump- 
tion of custody in the mother and leaving 
the father with the right to seek custody 
after establishing paternity. Norwood v. 
Robinson, 315 Ark. 255, 866 S.W.2d 398 
(1993). 

The order establishing paternity gave 
the statutory presumption the effect of 
judicial determination. Norwood v. Robin- 
son, 315 Ark. 255, 866 S.W2d 398 (1993). 



9-10-114 FAMILY LAW 126 

Implicit in an order of paternity estab- Mother properly raised a venue argu- 

lishing visitation is a determination that ment in her first responsive pleading; 

custody should continue to rest in the however, the issue was without merit be- 

mother. Norwood v. Robinson, 315 Ark. cause the provisions of this section were 

255, 866 S.W.2d 398 (1993). inapplicable in a case where a minor child 

Venue. no l° n g er resided in Arkansas. Thomas v. 

The fact that the legislature provided Avant, 370 Ark. 377, 260 S.W.3d 266 

for venue in two counties in § 9-10-104 (2007). 

(rewritten by 1989 amendment), which Cited: Roque v. Frederick, 272 Ark. 

governs suits brought by a father to deter- 392, 614 S.W.2d 667 (1981); Jarmon v. 

mine paternity, but only one county in this Brown, 286 Ark. 455, 692 S.W.2d 618 

section, demonstrates that this section (1985); Hooks v. Pratte, 53 Ark. App. 161, 

was intended to limit venue in custody 920 S.W.2d 24 (1996); Leach v. Leach, 57 

actions to the county wherein the child Ark. App. 155, 942 S.W.2d 286 (1997); 

resides. Fuller v. Robinson, 279 Ark. 252, Gilbert v. Moore, 364 Ark. 127, 216 S.W.3d 

650 S.W.2d 585 (1983). 583 (2005). 

9-10-114. Visitation rights of father. 

When any circuit court in this state determines the paternity of a 
child and orders the father to make periodic payments for support of the 
child, the court may also grant reasonable visitation rights to the father 
and may issue such orders as may be necessary to enforce the visitation 
rights. 

History. Acts 1979, No. 621, § 1;A.S.A. the trial courts of original jurisdiction. 

1947, § 34-715. The jurisdiction of the circuit courts now 

A.C.R.C. Notes. Ark. Const., Amend, includes "all matters previously cogni- 

80, adopted by voter referendum and ef- Z able by Circuit, Chancery, Probate and 

fective July 1, 2001, abolished chancery Juvenile Court...." 
courts and established circuit courts as 

RESEARCH REFERENCES 

U. Ark. Little Rock L.J. Shively, Sur- 
vey of Family Law, 3 U. Ark. Little Rock 
L.J. 223. 

CASE NOTES 

Contempt Power. Smith, 331 Ark. 525, 964 S.W.2d 784 

A chancery court has the power to use (1998). 

its contempt power to enforce its order Cited: Roque v. Frederick, 272 Ark. 

awarding visitation to a stepparent in the 392, 614 S.W.2d 667 (1981). 
context of a divorce decree. Young v. 

9-10-115. Modification of orders or judgments. 

(a) The circuit court may at any time enlarge, diminish, or vacate 
any order or judgment in the proceedings under this section except in 
regard to the issue of paternity as justice may require and on such 
notice to the defendant as the court may prescribe. 

(b) The court shall not set aside, alter, or modify any final decree, 
order, or judgment of paternity in which paternity blood testing, genetic 



127 PATERNITY 9-10-115 

testing, or other scientific evidence was used to determine the adjudi- 
cated father as the biological father. 

(c) Any signatory to a voluntary acknowledgment of paternity may 
rescind the acknowledgment by completing a form provided for that 
purpose and filing the form with the Division of Vital Records of the 
Department of Health: 

(1) Prior to the date that an administrative or judicial proceeding, 
including a proceeding to establish a support order, is held relating to 
the child and the person executing the voluntary acknowledgment of 
paternity is a party; or 

(2) Within sixty (60) days of executing the voluntary acknowledg- 
ment of paternity, 

whichever date occurs first. 

(d)(1) Beyond the sixty-day period or other limitation set forth in 
subsection (c) of this section, a person may challenge a paternity 
establishment pursuant to a voluntary acknowledgment of paternity or 
an order based on an acknowledgment of paternity only upon an 
allegation of fraud, duress, or material mistake of fact. 

(2) The burden of proof shall be upon the person challenging the 
establishment of paternity. 

(e)(1)(A) When any man has been adjudicated to be the father of a 
child or is deemed to be the father of a child pursuant to an 
acknowledgment of paternity without the benefit of scientific testing 
for paternity and as a result was ordered to pay child support, he 
shall be entitled to one (1) paternity test, pursuant to § 9-10-108, at 
any time during the period of time that he is required to pay child 
support upon the filing of a motion challenging the adjudication or 
acknowledgment of paternity in a court of competent jurisdiction. 

(B) If an acknowledgment of paternity was the basis for the order 
of support, the motion must comply with the requirements of subsec- 
tion (d) of this section. 

(2) The duty to pay child support and other legal obligations shall not 
be suspended while the motion is pending except for good cause shown, 
which shall be recited in the court's order. 

(f)(1) If the test administered under subdivision (e)(1)(A) of this 
section excludes the adjudicated father or man deemed to be the father 
pursuant to an acknowledgment of paternity as the biological father of 
the child and the court so finds, the court shall: 

(A) Set aside the previous finding or establishment of paternity; 

(B) Find that there is no future obligation of support; 

(C) Order that any unpaid support owed under the previous order 
is vacated; and 

(D) Order that any support previously paid is not subject to refund. 
(2) If the name of the adjudicated father or man deemed to be the 

father pursuant to an acknowledgment of paternity appears on the 
birth certificate of the child, the court shall issue an order requiring the 
birth certificate to be amended to delete the name of the father. 

(g) If the test administered under subdivision (e)(1)(A) of this section 
confirms that the adjudicated father or man deemed to be the father 



9-10-115 



FAMILY LAW 



128 



pursuant to an acknowledgment of paternity is the biological father of 
the child, the court shall enter an order adjudicating paternity and 
setting child support in accordance with § 9-10-109, the guidelines for 
child support, and the family support chart. 



History. Acts 1875 (Adj. Sess.), No. 24, 
§ 5, p. 25; 1879, No. 72, § 3, p. 95; C. & M. 
Dig., § 777; Acts 1927, No. Ill, § 1; 
Pope's Dig., § 933; Acts 1955, No. 236, 
§ 1; 1979, No. 718, § 1; 1983, No. 177, 
§ 1; A.S.A. 1947, § 34-706; Acts 1993, No. 
1242, § 8; 1995, No. 1091, § 3; 1997, No. 
1296, § 8; 1999, No. 1514, § 2; 2001, No. 
1736, § 1; 2007, No. 60, § 1. 

A.C.R.C. Notes. As originally enacted, 
subsection (a) provided: "The chancery 
court may at any time...." Amendment 80 
to the Arkansas Constitution was adopted 
by voter referendum and became effective 
July 1, 2001. Amendment 80 established 
circuit courts as the trial courts of original 
jurisdiction of all justiciable matters not 
otherwise assigned pursuant to the Con- 
stitution and specifically provided that 
"jurisdiction conferred on Circuit Courts 
established by this Amendment includes 



all matters previously cognizable by Cir- 
cuit, Chancery, Probate and Juvenile 
Courts...." 

Acts 2007, No. 60, § 1, in amending § 
9-10-115(f)(l) deleted the language "re- 
lieve him of any future obligation of sup- 
port as of the date of the finding" without 
markup. Upon review of the language of 
the bill as introduced and the language of 
the amendment to the bill, it was deter- 
mined that it was the intent of the amend- 
ment to replace the missing language with 
the language that is now subdivision 
(f)(1)(B). Therefore, the missing language 
is repealed. 

Amendments. The 2007 amendment 
added (f)(1)(B) through (D); redesignated 
the former provisions of (f)(1) as the intro- 
ductory language of (f)(1) and (f)(1)(A), 
and made related changes. 



RESEARCH REFERENCES 



Ark. L. Rev. Case Note, Child Support 
Supported: Policy Trumps Equity in Mar- 
tin v. Pierce Despite Fraud and a Contro- 
versial Amendment to the Paternity Code, 
61 Ark. L. Rev 571. 

U. Ark. Little Rock L.J. Survey of 
Arkansas Law, Family Law, 1 U. Ark. 
Little Rock L.J. 200. 

Shively, Survey of Family Law, 3 U. Ark. 
Little Rock L.J. 223. 



Legislation of the 1983 General Assem- 
bly, Family Law, 6 U. Ark. Little Rock L.J. 
624. 

U. Ark. Little Rock L. Rev. Survey of 
Legislation, 2001 Arkansas General As- 
sembly, Family Law, 24 U. Ark. Little 
Rock L. Rev. 483. 



CASE NOTES 



Analysis 

Purpose. 
Applicability. 
Authority to Modify. 
Discretion of Court. 
Effect of Amendments. 
Jurisdiction. 
Legislative Intent. 
Modification Denied. 
Motion to Transfer. 
Retroactive Modification. 
Termination. 



Purpose. 

The major purpose of Arkansas' filiation 
laws is to provide a process by which the 
putative father can be identified so that he 
may assume his equitable share of the 
responsibility to his child. Eaves v. Dover, 
291 Ark. 545, 726 S.W.2d 276 (1987). 

Previously adjudicated or acknowl- 
edged father could not be relieved of past- 
due child support as this statute only 
refers to relief from any future obligation 
of support and the duty to pay child sup- 
port and other legal obligations is not 



129 



PATERNITY 



9-10-115 



suspended while a motion challenging the 
adjudication of paternity is pending; the 
legislature did not intend for a previously 
adjudicated or acknowledged father to be 
relieved of past-due child support upon a 
finding that he was actually not the legal 
father. State Office of Child Support En- 
forcement v. Parker, 368 Ark. 393, 246 
S.W.3d 851 (2007). 

Applicability. 

Because this section should not be ap- 
plied retroactively, the voluntary acknowl- 
edgment of paternity was not conclusive 
by operation of law under the law as it 
existed in 1990, and paternity was not 
established that would trigger the run- 
ning of the statute of limitations of the 
former law. Bean v. Office of Child Support 
Enforcement, 340 Ark. 286, 9 S.W.3d 520 
(2000). 

Although this section had been 
amended, it did not overrule an appellate 
court decision concluding that the statute 
did not apply when paternity became an 
issue after a divorce decree had been en- 
tered. Martin v. Pierce, 370 Ark. 53, 257 
S.W.3d 82 (2007). 

Order holding that appellee was not the 
biological father of a child, setting aside 
an order of paternity, setting aside orders 
for child support, and vacating the out- 
standing amounts of child support was 
proper because the trial court applied the 
version of this section in effect at the time 
the written order was filed. Wesley v. Hall, 
104 Ark. App. 50, 289 S.W.3d 143 (2008), 
review denied, — Ark. — , — S.W.3d — , 
2009 Ark. LEXIS 496 (Jan. 30, 2009). 

Authority to Modify. 

A judgment may be modified only by the 
court which ordered it and not by any 
other court, especially not by a court of 
inferior jurisdiction. Rose v. Mahan, 29 
Ark. App. 93, 777 S.W.2d 864 (1989). 

The chancery court did not have the 
authority to grant a putative father's mo- 
tion for a paternity test, and later to set 
aside the paternity judgment, twelve 
years after the original adjudication of his 
paternity was entered upon his failure to 
comply with the testing requirements. 
Flemings v. Littles, 325 Ark. 367, 926 
S.W.2d 445 (1996). 

Discretion of Court. 

The trial court has discretion in assess- 
ing the amount of any awards made under 



this section. The court, in awarding ly- 
ing-in expenses or attorney's fees under 
this section, may exercise its discretion in 
determining the amount that father 
should bear, and in doing so, it may even 
consider the mother's financial means 
when making an award. Eaves v. Dover, 
291 Ark. 545, 726 S.W.2d 276 (1987). 

The claim of child support enforcement 
against putative father was an original 
action to establish paternity, as opposed to 
an action to modify a paternity order 
under this section, and the judge correctly 
found paternity pursuant to § 9-10- 
108(a)(6)(B). Bean v. Office of Child Sup- 
port Enforcement, 340 Ark. 286, 9 S.W.3d 
520 (2000). 

Effect of Amendments. 

If Acts 1995, No. 1091 were applied to 
any type of "acknowledgment of pater- 
nity" signed before the act's effective date, 
a new obligation would be created and the 
man signing the form, by operation of law, 
would become the father conclusively, 
when before Acts 1995, No. 1091 was 
passed, such evidence could only be used 
as persuasive, presumptive evidence of 
paternity. Bean v. Office of Child Support 
Enforcement, 340 Ark. 286, 9 S.W.3d 520 
(2000). 

Jurisdiction. 

Default judgment in a child support 
case should have been set aside because 
service was unquestionably defective 
where it was effectuated upon a purported 
father's brother; therefore, a circuit court 
abused its discretion when it took any 
action other than a dismissal of the case 
under Ark. R. Civ. P. 4(i). The father's 
subsequent participation in enforcement 
proceedings, including his act of filing for 
paternity testing, did not validate the void 
judgment. Foury v. Office of Child Support 
Enforcement, 99 Ark. App. 341, 260 
S.W.3d 328 (2007). 

Legislative Intent. 

All legislation is intended to act pro- 
spectively unless the purpose and intent 
of the legislature is to give the statutes 
retroactive effect which is expressly de- 
clared or necessarily implied from the 
language used. Bean v. Office of Child 
Support Enforcement, 340 Ark. 286, 9 
S.W.3d 520 (2000). 

Modification Denied. 

A petition for modification will be de- 
nied where the change in financial condi- 



9-10-116 



FAMILY LAW 



130 



tion is due to the fault, voluntary wastage, 
or dissipation of one's talents or assets, or 
where the means with which to pay were 
reduced or eliminated by criminal activity. 
Reid v. Reid, 57 Ark. App. 289, 944 S.W.2d 
559 (1997). 

Motion to Transfer. 

Trial court erred in granting mother's 
motion to transfer a custody action be- 
cause there was evidence that the father 
never established a residence outside of 
the first county, as contemplated by § 9- 
10-102(f)(l)(B)(i); thus, on father's motion 
to vacate, the trial court should have va- 
cated the transfer under subsection (a) of 
this section rather than grant father a 
directed verdict under Ark. R. Civ. P. 
60(a). Stephens v. Miller, 91 Ark. App. 253, 
209 S.W.3d 452 (2005). 

Retroactive Modification. 

Since subsection (d) of this section 
plainly directs the court to relieve the 
alleged father of only future obligation of 
support, an adjudicated father, later de- 
termined not to be the biological father, 
was not entitled to a refund of the support 
paid. State v. Phillippe, 323 Ark. 434, 914 
S.W.2d 752 (1996). 

An adjudicated father who was shown 
by scientific evidence not to be the biologi- 
cal father of the child in question was not 



entitled to relief from back child support 
under the statute since there was no evi- 
dence or contention that he ever had 
physical custody of the child, as required 
by § 9-14-234. Littles v. Flemings, 333 
Ark. 476, 970 S.W.2d 259 (1998). 

Termination. 

The changes in circumstances which 
gave rise to a previous modification of 
support cannot be used again as the basis 
for termination of support. Benn v. Benn, 
57 Ark. App. 190, 944 S.W.2d 555 (1997). 

Where scientific evidence proves that an 
adjudicated father is not, in fact, the bio- 
logical father of the child in question, the 
statute mandates prospective relief from 
child support. Littles v. Flemings, 333 
Ark. 476, 970 S.W2d 259 (1998). 

A paternity adjudication in a divorce 
decree is not affected by subsequent scien- 
tific testing which negates paternity. State 
Office of Child Support Enforcement v. 
Williams, 338 Ark. 347, 995 S.W2d 338 
(1999). 

Cited: Belford v. State, 96 Ark. 274, 
131 S.W 953 (1910); Epperson v. Sharp, 
222 Ark. 456, 261 S.W.2d 267 (1953); Do- 
zier v. Veasley, 272 Ark. 210, 613 S.W2d 
93 (1981); Roque v. Frederick, 272 Ark. 
392, 614 S.W.2d 667 (1981); Wilkins v. 
Ford, 275 Ark. 469, 631 S.W2d 298 (1982). 



9-10-116. [Repealed.] 



Publisher's Notes. This section, con- 
cerning chancellor's fees, was repealed by 
Acts 2003, No. 1185, § 14. The section 



was derived from Acts 1879, No. 72, § 4, 
p. 95; C. &. M. Dig., § 785; Pope's Dig., 
§ 941;A.S.A. 1947, § 34-714. 



9-10-117. [Repealed.] 



A.C.R.C. Notes. Former § 9-10-117, 
concerning appeal to circuit court, is 
deemed to be superseded by this section. 
The former section was derived from Acts 
1875 (Adj. Sess.), No. 24, § 7, p. 25; C. & 
M. Dig., § 780; Pope's Dig., § 936; A.S.A. 
1947, § 34-709. 



Publisher's Notes. This section, con- 
cerning appeals, was repealed by Acts 
2003, No. 1185, § 15. The section was 
derived from Acts 1989, No. 725, § 5. 



9-10-118. [Superseded.] 



A.C.R.C. Notes. This section, concern- 
ing trial de novo on appeal, is deemed to 
be superseded by § 9-10-117 [repealed]. 
This section was derived from Acts 1875 



(Adj. Sess.), No. 24, § 9, p. 25; C. & M. 
Dig., § 782; Pope's Dig., § 938; A.S.A. 
1947, § 34-711. 



131 PATERNITY 9-10-120 

9-10-119. Revival of judgment. 

The judgment may be revived against the executor or administrator 
of the person against whom the judgment was rendered. 

History. Acts 1875 (Adj. Sess.), No. 24, 
§ 6, p. 25; C. & M. Dig., § 779; Pope's 
Dig., § 935; A.S.A. 1947, § 34-708. 

9-10-120. Effect of acknowledgment of paternity. 

(a) A man is the father of a child for all intents and purposes if he and 
the mother execute an acknowledgment of paternity of the child 
pursuant to § 20-18-408 or § 20-18-409, or a similar acknowledgment 
executed during the child's minority. 

(b)(1) Acknowledgments of paternity shall by operation of law con- 
stitute a conclusive finding of paternity, subject to the modification of 
orders or judgments under § 9-10-115, and shall be recognized by the 
chancery courts and juvenile divisions thereof as creating a parent and 
child relationship between father and child. 

(2) Such acknowledgments of paternity shall also be recognized as 
forming the basis for establishment and enforcement of a child support 
or visitation order without a further proceeding to establish paternity 

(c) The Department of Health shall offer voluntary paternity estab- 
lishment services in all of its offices throughout the state. The Depart- 
ment of Health shall coordinate such services with the Office of Child 
Support Enforcement of the Revenue Division of the Department of 
Finance and Administration. 

(d) Upon submission of the acknowledgment of paternity to the 
Division of Vital Records of the Department of Health, the State 
Registrar of Vital Records shall accordingly establish a new or amended 
certificate of birth reflecting the name of the father as recited in the 
acknowledgment of paternity. 

(e) The Administrator of the Office of Child Support Enforcement of 
the Revenue Division of the Department of Finance and Administration 
and the hospital, birthing center, certified nurse practitioner, or li- 
censed midwife delivering the child shall enter into cooperative agree- 
ments to compensate at a rate not to exceed twenty dollars ($20.00) for 
each acknowledgment of paternity forwarded by the hospital, birthing 
center, certified nurse practitioner, or licensed midwife to the office. 

History. Acts 1995, No. 1091, § 1; the trial courts of original jurisdiction. 

1997, No. 1296, § 9. The jurisdiction of the circuit courts now 

A.C.R.C. Notes. Ark. Const., Amend, includes "all matters previously cogni- 

80, adopted by voter referendum and ef- zable by Circuit, Chancery, Probate and 

fective July 1, 2001, abolished chancery Juvenile Court...." 
courts and established circuit courts as 



9-10-201 



FAMILY LAW 
CASE NOTES 



132 



Analysis 

Effect of Amendments. 
Time of Execution. 

Effect of Amendments. 

If Acts 1995, No. 1091 were applied to 
any type of "acknowledgment of pater- 
nity" signed before the act's effective date, 
a new obligation would be created and the 
person signing the form, by operation of 
law, would become the father conclusively, 
when before Acts 1995, No. 1091 was 
passed, such evidence could only be used 



as persuasive, presumptive evidence of 
paternity. Bean v. Office of Child Support 
Enforcement, 340 Ark. 286, 9 S.W.3d 520 
(2000). 

Time of Execution. 

Although §§ 20-18-408 and 20-18-409 
were not in effect in 1990 when the "Affi- 
davit of Birth Out of Wedlock" was signed, 
this section also allows a "similar ac- 
knowledgment" to suffice if it is executed 
during the child's minority. Bean v. Office 
of Child Support Enforcement, 340 Ark. 
286, 9 S.W3d 520 (2000). 



Subchapter 2 — Artificial Insemination 



SECTION. 

9-10-201. Child born to married or un- 
married woman — Pre- 
sumptions — Surrogate 
mothers. 



SECTION. 

9-10-202. Supervision by physician 
Written agreement. 



RESEARCH REFERENCES 



A.L.R. Validity and construction of sur- 
rogate parenting agreement. 77 A.L.R.4th 
70. 

Rights and obligations resulting from 
human artificial insemination. 83 
A.L.R.4th 295. 



Am. Jur. 10 Am. Jur. 2d, Bastards, § 1. 

Ark. L. Rev. Artificial Insemination, 23 
Ark. L. Rev. 81. 

U. Ark. Little Rock L.J. Legislative 
Survey, Family Law, 8 U. Ark. Little Rock 
L.J. 577. 



9-10-201. Child born to married or unmarried woman — Pre- 
sumptions — Surrogate mothers. 

(a) Any child born to a married woman by means of artificial 
insemination shall be deemed the legitimate natural child of the 
woman and the woman's husband if the husband consents in writing to 
the artificial insemination. 

(b) A child born by means of artificial insemination to a woman who 
is married at the time of the birth of the child shall be presumed to be 
the child of the woman giving birth and the woman's husband except in 
the case of a surrogate mother, in which event the child shall be that of: 

(1) The biological father and the woman intended to be the mother if 
the biological father is married; 

(2) The biological father only if unmarried; or 



133 PATERNITY 9-10-202 

(3) The woman intended to be the mother in cases of a surrogate 
mother when an anonymous donor's sperm was utilized for artificial 
insemination. 

(c)(1) A child born by means of artificial insemination to a woman 
who is unmarried at the time of the birth of the child shall be, for all 
legal purposes, the child of the woman giving birth, except in the case 
of a surrogate mother, in which event the child shall be that of: 

(A) The biological father and the woman intended to be the mother 
if the biological father is married; 

(B) The biological father only if unmarried; or 

(C) The woman intended to be the mother in cases of a surrogate 
mother when an anonymous donor's sperm was utilized for artificial 
insemination. 

(2) For birth registration purposes, in cases of surrogate mothers the 
woman giving birth shall be presumed to be the natural mother and 
shall be listed as such on the certificate of birth, but a substituted 
certificate of birth may be issued upon orders of a court of competent 
jurisdiction. 

History. Acts 1985, No. 904, §§ 1, 2; 
A.S.A. 1947, §§ 34-720, 34-721; Acts 1989, 
No. 647, § 1. 

CASE NOTES 

Estoppel. pay child support for children conceived 

Finding that the husband was estopped through artificial insemination, collateral 

from denying that twins conceived by ar- estoppel did not preclude him from raising 

tificial insemination were not his was the issue of consent in a subsequent action 

proper even though the written consent against a physician and a clinic alleging 

required by § 9-10-202(b) had not been outrage and negligence because the issue 

obtained because the husband knew the was not dispositive in the divorce case, 

facts and acted as if he agreed to the Brown v Wyatt? 89 Ark App 306j 202 

procedure; further, he accepted the chil- g W3d 555 (2005) 

dren as his own Brown .y Brown, 83 Ark. CUed . BrQwn y w g9 Ark A 

T \ 125 w? I 40 , I 2003 '' A , t 306, 202 S.W.3d 555 (2005). 
Even though father had been ordered to 

9-10-202. Supervision by physician — Written agreement. 

(a) Artificial insemination of a woman shall only be performed under 
the supervision of a physician licensed under the Arkansas Medical 
Practices Act, § 17-95-201 et seq., § 17-95-301 et seq., and § 17-95-401 
et seq. 

(b) Prior to conducting the artificial insemination, the supervising 
physician shall obtain from the woman and her husband or the donor of 
the semen a written statement attesting to the agreement to the 
artificial insemination, and the physician shall certify their signatures 
and the date of the insemination. 

History. Acts 1985, No. 904, § 3; A.S.A. 
1947, § 34-722. 



9-10-202 



FAMILY LAW 



134 



CASE NOTES 



Analysis 

Estoppel. 
Wrongful Birth. 

Estoppel. 

Finding that the husband was estopped 
from denying that twins conceived by ar- 
tificial insemination were not his was 
proper even though the written consent 
required by subsection (b) of this section 
had not been obtained because the hus- 
band knew the facts and acted as if he 
agreed to the procedure; further, he ac- 
cepted the children as his own. Brown v. 



Brown, 83 Ark. App. 217, 125 S.W.3d 840 
(2003). 

Wrongful Birth. 

Summary judgment was properly 
granted to a physician and a clinic in an 
outrage claim based on their failure to 
comply with subsection (b) of this section 
regarding an artificial insemination pro- 
cedure on a wife because a wrongful birth 
action was not cognizable under Arkansas 
law. Brown v. Wyatt, 89 Ark. App. 306, 202 
S.W3d 555 (2005). 

Cited: Brown v. Wyatt, 89 Ark. App. 
306, 202 S.W.3d 555 (2005). 



CHAPTER 11 
MARRIAGE 



subchapter. 

1. General Provisions. 

2. License and Ceremony. 

3. Marriage Contracts Generally. 

4. Arkansas Premarital Agreement Act. 

5. Rights and Property of Married Persons. 

6. Rights in Real Estate of Insane Spouse. 

7. Validating Acts. 

8. Covenant Marriage Act. 



Subchapter 1 — General Provisions 



section. 

9-11-101. Marriage a civil contract — 
Consent of parties. 

9-11-102. Minimum age — Parental con- 
sent. 

9-11-103. Minimum age — Exception. 

9-11-104. Minimum age — Lack of paren- 
tal consent or misrepre- 
sentation of age — Annul- 
ment. 

9-11-105. Marriage of underage parties 
voidable. 



SECTION. 

9-11-106. 



9-11-107. 
9-11-108. 



9-11-109. 



Incestuous marriages — Penal- 
ties for entering into or sol- 
emnizing. 

Validity of foreign marriages. 

Presumption of spouse's death 
— Validity of subsequent 
marriage. 

Validity of same-sex marriages. 



Effective Dates. Acts 1875, No. 102, 
§ 2: effective six months after passage. 

Acts 1941, No. 32, § 3: approved Feb. 6, 
1941. Emergency clause provided: 
"Whereas, numerous marital contracts 
entered into between persons of immature 
ages continuously create serious domestic 



relations problems, and under present 
conditions the parent has insufficient con- 
trol over the marriage contract of his 
minor child, all of which results in confu- 
sion, an emergency is declared to exist. 
This act being for the immediate preser- 
vation of public peace, health and safety, 



135 



MARRIAGE 



shall be in full force and effect from and 
after its passage." 

Acts 1964 (1st Ex. Sess.), No. 5, § 3: 
Mar. 26, 1964. Emergency clause pro- 
vided: "It is hereby found and determined 
by the General Assembly that the present 
law of this State provides that marriage 
contracted by a male person under the age 
of eighteen (18) years or a female person 
under the age of sixteen (16) years is 
absolutely void; that there are many per- 
sons in this State who were married when 
one or both parties to the contract were 
under the ages set out above who believe 
themselves to be validly married and who 
have lived together as husband and wife 
for many years; that the fact that such 
marriages are declared void by the 
present laws of this State have resulted in 
and will continue to result in such persons 
being deprived of certain privileges and 
benefits to which such persons would have 
been entitled had their marriage not been 
deemed absolutely void by law; and that it 
is necessary that this inequity be cor- 
rected immediately. Therefore, an emer- 
gency is hereby declared to exist and this 
Act being necessary for the immediate 
preservation of the public peace, health 
and safety shall be in effect from the date 
of its passage and approval." 

Acts 1971, No. 145, § 3: approved Feb. 
22, 1971. Emergency clause provided: "It 
is hereby found and determined by the 
General Assembly of the State of Arkan- 
sas that there are many cases involving 
males under the age of eighteen (18) and 
females under the age of sixteen (16) 
wherein the female has given birth to a 
child, but under existing law the underage 
parties under these circumstances are 
prohibited from marrying. It is further 
determined by the General Assembly that 
where a child has been born to an under- 
age couple that it would be in the interest 
of the couple, their families and the State 
of Arkansas that they be permitted to 
enter into the bonds of marriage. There- 
fore, an emergency is declared to exist and 
this Act being necessary for the preserva- 
tion of the public peace, health and safety 
shall be in full force and effect from and 
after its passage." 

Acts 1973, No. 79, § 3: Feb. 7, 1973. 
Emergency clause provided: "It is hereby 
found and determined by the General As- 
sembly of the State of Arkansas that un- 
der the present laws of this State, males 



under eighteen (18) years of age cannot 
contract marriage even with parental con- 
sent but that such seventeen (17) year old 
males are in fact permitted and encour- 
aged to serve in the armed forces of the 
United States and to do and perform 
many other acts which demonstrate their 
maturity; that it is unfair and inequitable 
to deprive these young men, seventeen 
(17) years of age of the privilege of con- 
tracting marriage and that this Act is 
designed to correct this situation and 
should be given effect immediately. There- 
fore, an emergency is declared to exist and 
this Act being necessary for the immediate 
preservation of the public peace, health 
and safety shall be in full force and effect 
from and after its passage and approval." 

Acts 1981, No. 371, § 3: Mar. 9, 1981. 
Emergency clause provided: "It is hereby 
found and determined by the General As- 
sembly that present law provides that 
parental consent is required for the issu- 
ance of a marriage license to a male under 
the age of twenty-one (21) years but is not 
required in the instance of a female who is 
over eighteen (18) years of age; that such 
distinction between males and females is 
unreasonable and that this act is immedi- 
ately necessary to grant equal treatment 
to both the males and females as regards 
parental consent for obtaining a marriage 
license. Therefore, an emergency is 
hereby declared to exist and this Act being 
immediately necessary for the preserva- 
tion of the public peace, health and safety 
shall be in full force and effect from and 
after its passage and approval." 

Acts 2008 (1st Ex. Sess.), No. 3, § 5: 
Apr. 2, 2008. Emergency clause provided: 
"It is found and determined by the Gen- 
eral Assembly that questions concerning 
the application of Act 441 of 2007 as 
enacted have arisen, and differing inter- 
pretations by the courts and county clerks 
require the immediate correction and 
clarification of the law to ensure uniform 
application of the minimum age require- 
ment for marriage. Therefore, an emer- 
gency is declared to exist and this act 
being necessary for the preservation of the 
public peace, health, and safety shall be- 
come effective on: 1. The date of its ap- 
proval by the Governor; 2. If the bill is 
neither approved nor vetoed by the Gov- 
ernor, the expiration of the period of time 
during which the Governor may veto the 
bill; or 2. If the bill is vetoed by the 



9-11-101 



FAMILY LAW 



136 



Governor and the veto is overridden, the 
date the last house overrides the veto." 

Acts 2009. No. 956, § 34: July 31, 2009. 
Emergency clause provided: "It is found 
and determined by the General Assembly 
of the State of Arkansas that laws con- 
cerning juveniles need to be amended and 
updated; that the fair and efficient admin- 
istration of juvenile law is highly impor- 
tant to society at large: and that this act is 
immediately necessary because the judi- 
ciary needs to begin addressing these 
changes in laws involving juveniles. 



Therefore, an emergency is declared to 
exist and this act being immediately nec- 
essary for the preservation of the public 
peace, health, and safety shall become 
effective on: (1) The date of its approval by 
the Governor; (2) If the bill is neither 
approved nor vetoed by the Governor, the 
expiration of the period of time during 
which the Governor may veto the bill; or 
(3) If the bill is vetoed by the Governor 
and the veto is overridden, the date the 
last house overrides the veto." 



RESEARCH REFERENCES 



AX.R. Validity of marriage as affected 
bv lack of legal authority of person solem- 
nizing it. 13 A.L.R.4th 1323. 

Marriage between persons of the same 
sex. 81A.L.R.5th 1. 

Am. Jur. 52 Am. Jur. 2d, Marriage, § 1 
et seq. 

Ark. L. Rev. Domestic Relations — 
Annulment by Parents When Minors Are 
Above Statutorv Marriage Age, 8 Ark. L. 
Rev. 113. 

The Effect of Void and Voidable Mar- 
riages in Arkansas. 10 Ark. L. Rev. 188. 

The Cause of Action for Annulment of 
Marriage in Arkansas, 14 Ark. L. Rev. 85. 



The Uniform Marriage and Divorce Act: 
Analysis for Arkansas, 28 Ark. L. Rev. 175. 

C.J.S. 2 C.J.S.. Adv Poss, § 5. 
2AC.J.S., Affdvts, § 26. 
3AC.J.S., Alt of Inst, § 66. 
6 C.J.S. , Apprent, § 6. 
12A C.J.S., Burg, § 80. 
14A C.J.S., Civil R, § 160. 
15A C.J.S., Compr, § 27. 
26 C.J.S.. Deeds, § 132. 
38A C.J.S., Gifts, § 64. 
55 C.J.S., Marriage, § 1 et seq. 
65 C.J.S., Names, §§ 5-8. 
94 C.J.S., Wills, §■ 253. 



CASE NOTES 



Reputation. 

Where record evidence had been de- 
stroyed by fire, reputation of marriage 
was admissible to establish legitimacy of 



issue. Farmer v. Towers, 106 Ark. 123, 152 
S.W. 993 (1913). 

Cited: Pickens-Bond Constr. Co. v. 
Case. 266 Ark. 323, 584 S.W.2d 21 (1979). 



9-11-101. Marriage a civil contract — Consent of parties. 

Marriage is considered in law a civil contract to which the consent of 
the parties capable in law of contracting is necessary. 



History. Rev Stat., ch. 94. § 1; C. & M. 
Dig.. § 7036: Pope's Dig.. § 9016; A.S.A. 
1947. § 55-101. 



137 MARRIAGE 9-11-102 

CASE NOTES 

Analysis together as husband and wife, a valid 

marriage is presumed. Fountain v. Foun- 

Common-Law Marriage. tain, 80 Ark. 481, 97 S.W. 656 (1906); 

Consent of Parties. Darling v. Dent, 82 Ark. 76, 100 S.W. 747 

Presumptions. (1907). 

Regulation. Where a married man and a woman 

held themselves out as husband and wife, 

Common-Law Marriage. before and after his divorce) there was n0 

A common-law marriage is invalid in presumption of a legal marriage. O'Neill v. 

this state. Furth v. Furth, 97 Ark. 272, 133 Davi 88 Ark 196 113 s w 1027 (1908) 
S.W. 1037 (1911). 

Regulation. 

Consent of Parties. Marriage is more than only a civil con- 

If a man marries a woman through fear tract; it ig a social and domestic relation 

of the consequences of seduction, the mar- sub j ec t to regulation under the state's 

riage will, nevertheless, be valid. Honnett police power Dodson v . Statej 61 Ark . 5?5 

v. Honnett, 33 Ark. 156 (1878); Marvin v. 31 S W 977 (1895) 
Marvin, 52 Ark. 425, 12 S.W. 875 (1890). 

Presumptions. 

Where a man and woman are living 

9-11-102. Minimum age — Parental consent. 

(a) Every male who has arrived at the full age of seventeen (17) years 
and every female who has arrived at the full age of sixteen (16) years 
shall be capable in law of contracting marriage. 

(b)(1) However, males and females under the age of eighteen (18) 
years shall furnish the clerk, before the marriage license can be issued, 
satisfactory evidence of the consent of the parent or parents or guardian 
to the marriage. 

(2)(A) The consent of both parents of each contracting party shall be 
necessary before the marriage license can be issued by the clerk 
unless the parents have been divorced and custody of the child has 
been awarded to one (1) of the parents exclusive of the other, or unless 
the custody of the child has been surrendered by one (1) of the parents 
through abandonment or desertion, in which cases the consent of the 
parent who has custody of the child shall be sufficient. 

(B) The consent of the parent may be voided by the order of a 
circuit court on a showing by clear and convincing evidence that: 
(i) The parent is not fit to make decisions concerning the child; and 
(ii) The marriage is not in the child's best interest. 

(c) There shall be a waiting period of five (5) business days for any 
marriage license issued under subdivision (b)(2) of this section. 

(d) If a child has a pending case in the circuit court, a parent who 
files consent under subsection (b) of this section shall immediately 
notify the circuit court, all parties, and attorneys to the pending case. 

History. Rev Stat., ch. 94, § 2; C. & M. 1963, No. 72, § 1; 1964 (1st Ex. Sess.), No. 
Dig., § 7037; Pope's Dig., § 9017; Acts 5, § 1; 1971, No. 145, § 1; 1973, No. 79, 
1941, No. 32, § 1; 1961, No. 497, § 1; § 1; 1981, No. 371, § 1; A.S.A. 1947, § 55- 



9-11-103 



FAMILY LAW 



138 



102; Acts 2007, No. 441, § 1; 2008 (1st Ex. 
Sess.), No. 3, § 1; 2009, No. 956, § 4. 

Amendments. The 2007 amendment 
rewrote (a) and (b) and added (c). 

The 2008 (1st Ex. Sess.) amendment 
rewrote the section. 



The 2009 amendment inserted (b)(2)(B), 
redesignated the existing text of (b)(2) 
accordingly, and made a related change; 
and added (c) and (d). 



CASE NOTES 



Analysis 

Out-of-State Marriage. 
Parental Consent. 

Out-of-State Marriage. 

This section, silent as to marriages of 
underage persons outside the state, has 
no effect upon such marriages, even of 
domiciled inhabitants, entered into out of 
the state. State v. Graves, 228 Ark. 378, 
307 S.W.2d 545 (1957). 



Parental Consent. 

The Arkansas Code Revision Commis- 
sion exceeded its authority when it altered 
the language of subsection (b) of this sec- 
tion to limit the right of a parent to 
consent to the marriage of a minor child. 
Porter v. Ark. Dep't of HHS, 374 Ark. 177, 
286 S.W.3d 686 (2008). 

Cited: Barnett v. State, 35 Ark. 501 
(1880). 



9-11-103. Minimum age — Exception. 

(a)(1) If an application for a marriage license is made where one (1) 
or both parties are under the minimum age prescribed in § 9-11-102 
and the female is pregnant, both parties may appear before a judge of 
the circuit court of the district where the application for a marriage 
license is being made. 

(2) Evidence shall be submitted as to: 

(A) The pregnancy of the female in the form of a certificate from a 
licensed and regularly practicing physician of the State of Arkansas; 

(B) The birth certificates of both parties; and 

(C) Parental consent of each party who may be under the mini- 
mum age. 

(3) Thereupon, after consideration of the evidence and other facts 
and circumstances, if the judge finds that it is to the best interest of the 
parties, the judge may enter an order authorizing and directing the 
county clerk to issue a marriage license to the parties. 

(4) The county clerk shall retain a copy of the order on file in the 
clerk's office with the other papers. 

(b) However, if the female has given birth to the child, the court 
before whom the parties are to appear, if satisfied that it would be to the 
best interests of all the interested parties and if all the requirements of 
subsection (a) of this section are complied with, with the exception of 
the physician's certificate as to the pregnancy, may enter an order 
authorizing and directing the county clerk to issue a marriage license 
as provided in subsection (a) of this section. 



History. Rev. Stat., ch. 94, § 2; C. & M. 
Dig., § 7037; Pope's Dig., § 9017; Acts 
1941, No. 32, § 1; 1961, No. 497, § 1; 
1963, No. 72, § 1; 1964 (1st Ex. Sess.), No. 



5, § 1; 1971, No. 145, § 1; 1973, No. 79, 
§ 1; 1981, No. 371, § 1; A.S.A. 1947, § 55- 
102; Acts 2007, No. 441, § 2; 2008 (1st Ex. 
Sess.), No. 3, § 2. 



139 



MARRIAGE 



9-11-104 



A.C.R.C. Notes. Ark. Const., Amend. 
80, adopted by voter referendum and ef- 
fective July 1, 2001, abolished chancery 
courts and established circuit courts as 
the trial courts of original jurisdiction. 
The jurisdiction of the circuit courts now 
includes "all matters previously cogni- 
zable by Circuit, Chancery, Probate and 
Juvenile Courts...." 

Amendments. The 2007 amendment, 
in (a)(1), deleted "an application for a 
marriage license is made where" following 
"if, inserted "of the" following "both", in- 
serted "to a contract for marriage or ap- 
plication for a marriage license", substi- 
tuted "a party who has not obtained 
parental consent under § 9-11-102" for 
"both parties", and substituted "circuit 
court judge in" for "judge of the circuit 



court of; rewrote (a)(2); in (a)(3), substi- 
tuted "The circuit court judge" for "There- 
upon", substituted "considering" for "con- 
sideration of, deleted "if the judge finds 
that it is to the best interest of the parties, 
the judge" following "circumstances" and 
added "if the circuit court judge finds that 
issuance of a marriage license is in the 
best interests of the parties"; in (a)(4), 
inserted "circuit court judge's" and in- 
serted "county" before "clerk's"; inserted 
the (b)(1) designation; rewrote (b)(1); and 
added (b)(2) through (b)(4). 

The 2008 (1st Ex. Sess.) amendment 
rewrote the section. 

Cross References. County offices de- 
fined, § 14-14-603. 

Distribution powers of county govern- 
ments, § 14-14-502. 



CASE NOTES 



Out-of-State Marriages. 

This section, silent as to marriages of 
underage persons outside the state, has 
no effect upon such marriages, even of 
domiciled inhabitants, entered into out of 



the state. State v. Graves, 228 Ark. 378, 
307 S.W.2d 545 (1957). 

Cited: Barnett v. State, 35 Ark. 501 
(1880). 



9-11-104. Minimum age — Lack of parental consent or misrep- 
resentation of age — Annulment. 

In all cases in which the consent of the parent or parents or guardian 
is not provided, or there has been a misrepresentation of age by a 
contracting party, the marriage contract may be set aside and annulled 
upon the application of the parent or parents or guardian to the circuit 
court having jurisdiction of the cause. 



History. Rev. Stat., ch. 94, § 2; C. & M. 
Dig., § 7037; Pope's Dig., § 9017; Acts 
1941, No. 32, § 1; 1961, No. 497, § 1; 
1963, No. 72, § 1; 1964 (1st Ex. Sess.), No. 



5, § 1; 1971, No. 145, § 1; 1973, No. 79, 
§ 1; 1981, No. 371, § 1; A.S.A. 1947, § 55- 
102. 



CASE NOTES 



Analysis 

Discretion of Court. 

Evidence of Nonconsent. 

Out-of-State Marriage. 

Pregnancy. 

Unclean Hands Doctrine. 

Discretion of Court. 

If parental consent is required for un- 
derage male or female, the trial court is 



entitled to exercise its discretion in deter- 
mining whether marriage is to be set 
aside, since phrase "may be set aside" is 
used. Mitchell v. Mitchell, 219 Ark. 69, 239 
S.W.2d 748 (1951). 

Trial court did not abuse its discretion 
in refusing to set aside marriage where 
parties were underage, if neither party 
testified. Mitchell v. Mitchell, 219 Ark. 69, 
239 S.W.2d 748 (1951). 



9-11-105 



FAMILY LAW 



140 



Evidence of Nonconsent. 

Evidence by parents of nonconsent to 
marriage was admissible under complaint 
by father to annul marriage of daughter 
where complaint alleged that daughter 
was underage and marriage was void. 
Warner v. Warner, 221 Ark. 939, 256 
S.W2d 734 (1953). 

Out-of-State Marriage. 

This section, silent as to marriages of 
underage persons outside the state, has 
no effect upon such marriages, even of 
domiciled inhabitants, entered into out of 
the state. State v. Graves, 228 Ark. 378, 
307 S.W.2d 545 (1957). 

Pregnancy. 

Annulment of marriage of minor under 



the age of consent is not contrary to public 
policy notwithstanding wife's pregnancy. 
Hood v. Hood, 206 Ark. 1057, 178 S.W2d 
670 (1944). 

Unclean Hands Doctrine. 

Theory of unclean hands is not appli- 
cable to action to annul marriage on 
grounds of nonage, even though party 
seeking relief made false statement as to 
age in affidavit for marriage. Hood v. 
Hood, 206 Ark. 1057, 178 S.W2d 670 
(1944). 

Cited: Barnett v. State, 35 Ark. 501 
(1880). 



9-11-105. Marriage of underage parties voidable. 

(a) The marriage of any male under the full age of seventeen (17) 
years and the marriage of any female under the full age of sixteen (16) 
years is voidable. 

(b) All marriages contracted prior to March 26, 1964, where one (1) 
or both parties to the contract were under the minimum age prescribed 
by law for contracting marriage are declared to be voidable only and 
shall be valid for all intents and purposes unless voided by a court of 
competent jurisdiction. 

(c) All marriages contracted between July 30, 2007, and April 2, 
2008, in which one (1) or both parties to the contract were under the 
minimum age prescribed by law for contracting marriage are voidable 
only and are valid for all intents and purposes unless voided by a court 
of competent jurisdiction. 



History. Rev. Stat., ch. 94, § 2; C. & M. 
Dig., § 7037; Pope's Dig., § 9017; Acts 
1941, No. 32, § 1; 1961, No. 497, § 1; 
1963, No. 72, § 1; 1964 (1st Ex. Sess.), No. 
5, §§ 1, 2; 1971, No. 145, § 1; 1973, No. 



79, § 1; 1981, No. 371, § 1; A.S.A. 1947, 
§§ 55-102, 55-102.1; Acts 2008 (1st Ex. 
Sess.), No. 3, § 4. 

Amendments. The 2008 (1st Ex. Sess.) 
amendment added (c). 



CASE NOTES 



Out-of-State Marriage. 

Though the marriage of an underage 
person is void by the laws of this state, if 
the person is married in another state 
where the common law prevails the mar- 
riage will be deemed valid here. Barnett v. 
State, 35 Ark. 501 (1880) (decision prior to 
1964 amendment). 



This section, silent as to marriages of 
underage persons outside the state, has 
no effect upon such marriages, even of 
domiciled inhabitants, entered into out of 
the state. State v. Graves, 228 Ark. 378, 
307 S.W.2d 545 (1957). 

Cited: Mitchell v. Mitchell, 219 Ark. 69, 
239 S.W.2d 748 (1951). 



141 MARRIAGE 9-11-107 

9-11-106. Incestuous marriages — Penalties for entering into or 
solemnizing. 

(a) All marriages between parents and children, including grandpar- 
ents and grandchildren of every degree, between brothers and sisters of 
the half as well as the whole blood, and between uncles and nieces, and 
between aunts and nephews, and between first cousins are declared to 
be incestuous and absolutely void. This section shall extend to illegiti- 
mate children and relations. 

(b) Whoever contracts marriage in fact, contrary to the prohibitions 
of subsection (a) of this section, and whoever knowingly solemnizes the 
marriage shall be deemed guilty of a misdemeanor and shall upon 
conviction be fined or imprisoned, or both, at the discretion of the jury 
who shall pass on the case, or if the conviction shall be by confession, or 
on demurrer, then at the discretion of the court. 

History. Rev. Stat, ch. 94, §§ 3, 9; Acts Acts 1973, No. 253, § 1; A.S.A. 1947, 
1875, No. 102, § 1, p. 221; C. & M. Dig., §§ 55-103, 55-105. 
§§ 7038, 7045; Pope's Dig., §§ 9018, 9025; Cross References. Incest, § 5-26-202. 

CASE NOTES 

First Cousins. his first cousin and when they discovered 

A marriage between first cousins does that such marriages were prohibited in 

not create "much social alarm," so that the Arkansas had such marriage annulled 

marriage will be recognized if it was valid and got married in state permitting such 

by the law of the state in which it took marriages and returned to Arkansas, such 

place. Etheridge v. Shaddock, 288 Ark. rem arriage was not a sufficient basis for 

481, 706 S.W.2d 395 (1986). change of custody. Etheridge v. Shaddock, 

Where after divorce and awarding of 2 88 Ark. 481, 706 S.W.2d 395 (1986). 
custody of children to father, he married 

9-11-107. Validity of foreign marriages. 

(a) All marriages contracted outside this state that would be valid by 
the laws of the state or country in which the marriages were consum- 
mated and in which the parties then actually resided shall be valid in 
all the courts in this state. 

(b) This section shall not apply to a marriage between persons of the 
same sex. 

History. Rev. Stat., ch. 94, § 7; C. & M. 
Dig., § 7043; Pope's Dig., § 9023; A.S.A. 
1947, § 55-110; Acts 1997, No. 144, § 2. 

RESEARCH REFERENCES 

Ark. L. Notes. Watkins, A Guide to 
Choice of Law in Arkansas, 2005 Arkan- 
sas L. Notes 151. 



9-11-108 



FAMILY LAW 
CASE NOTES 



142 



Analysis 

Common-Law Marriages. 
Indian Territory. 

Common-Law Marriages. 

A common-law marriage contracted in 
another state, and valid there, is valid 
here. Darling v. Dent, 82 Ark. 76, 100 S.W. 
747 (1907); Evatt v. Miller, 114 Ark. 84, 
169 S.W. 817 (1914); Estes v. Merrill, 121 
Ark. 361, 181 S.W. 136 (1915). 

Where parties cohabited in Arkansas 
and temporarily sojourned in a state 
where common-law marriage was recog- 
nized, they could not by that conduct 
alone become legally man and wife. 
Walker v. Yarbrough, 257 Ark. 300, 516 
S.W.2d 390 (1974). 

Common-law marriages are not permit- 
ted in Arkansas, but the state will recog- 
nize marriages contracted in another 
state which are valid by the laws of that 
state. One seeking to prove the existence 
of a valid common-law marriage in an- 
other state must do so by a preponderance 
of the evidence. Knaus v. Relyea, 24 Ark. 
App. 7, 746 S.W.2d 389 (1988). 

Residency in a state in which a common 
law marriage may be created is necessary 
for the recognition of the common law 
marriage in Arkansas. Brissett v. Sykes, 
313 Ark. 515, 855 S.W.2d 330 (1993). 

Trial court properly found that there 



was no common law marriage between a 
decedent and his alleged spouse, who had 
lived together in Alberta, Canada, because 
Alberta statutory law did not recognize 
such marriages and the decedent and al- 
leged wife had not lived as married for 
three years in order to meet the Alberta 
case law definition; hence, under subsec- 
tion (a) of this section there was no valid 
marriage that could be recognized in Ar- 
kansas. Craig v. Carrigo, 353 Ark. 761, 
121 S.W3d 154 (2003). 

Circuit court did not clearly err in find- 
ing that no common-law marriage existed 
between the parties, because the parties 
lived in Arkansas, which did not recognize 
common-law marriages, the wedding cer- 
emony took place in Texas without obtain- 
ing a marriage license or certificate, and 
there was no evidence that the parties 
lived together in Texas after the ceremony. 
Crane v. Taliaferro, — Ark. App. — , — 
S.W3d — , 2009 Ark. App. LEXIS 360 
(Apr. 29, 2009). 

Indian Territory. 

Laws relating to marriage in the Indian 
Territory must be proved. Johnson v. 
State, 60 Ark. 45, 28 S.W 792 (1894). 

Cited: Bickford v. Carden, 215 Ark. 
560, 221 S.W.2d 421 (1949); Stilley v. 
Stilley, 219 Ark. 813, 244 S.W2d 958 
(1952); May v. Daniels, 359 Ark. 100, 194 
S.W.3d 771 (2004). 



9-11-108. Presumption of spouse's death — Validity of subse- 
quent marriage. 

In all cases in which any husband abandons his wife, or a wife her 
husband, and resides beyond the limits of this state for the term of five 
(5) successive years, without being known to the other spouse to be 
living during that time, the abandoning party's death shall be pre- 
sumed. Any subsequent marriage entered into after the end of the five 
(5) years shall be as valid as if the husband or wife were dead. 



History. Rev. Stat., ch. 94, § 8; C. & M. 
Dig., § 7044; Pope's Dig., § 9024; A.S.A. 
1947, § 55-109. 



Cross References. 

death, § 16-40-105. 



Presumption of 



143 



MARRIAGE 
CASE NOTES 



9-11-109 



Analysis 

Abandonment. 
Burden of Proof. 
Presumptions. 

Abandonment. 

Evidence inconsistent with the theory of 
abandonment. Cole v. Cole, 249 Ark. 824, 
462 S.W.2d 213 (1971). 

Burden of Proof. 

It is settled that neither the fact of 
death nor that of absence from the state 
can be inferred from the bare fact of a 
disappearance. Petitioner has the burden 
of producing evidence from which the 
court might fairly conclude that first hus- 



band had lived continuously outside the 
state for at least five years before the 
petitioner's second marriage. Baxter v. 
Baxter, 232 Ark. 151, 334 S.W.2d 714 
(1960). 

Presumptions. 

Where the presumption of death was 
overcome by substantial evidence, the 
court was warranted in finding the subse- 
quent marriage invalid. Goset v. Goset, 
112 Ark. 47, 164 S.W. 759 (1914). 

Presumption in favor of validity of sec- 
ond marriage does not apply if separation 
from first wife was by mutual consent. 
Watson v. Palmer, 219 Ark. 178, 240 
S.W.2d 875 (1951). 



9-11-109. Validity of same-sex marriages. 

Marriage shall be only between a man and a woman. A marriage 
between persons of the same sex is void. 

History. Acts 1997, No. 144, § 1. 

Subchapter 2 — License and Ceremony 



SECTION. 

9-11-201. Licenses required. 

9-11-202. Form of license. 

9-11-203. Issuance by clerks. 

9-11-204. Issuance of license unlawfully 
— Penalty. 

9-11-205. Notice of intention to wed — 
Noncompliance, penalties, 
and effect. 

9-11-206. Clerk's fees. 

9-11-207. Applicants for marriage li- 
censes to be sober. 

9-11-208. License not issued to persons of 
the same sex. 

9-11-209. Proof of age — Parental con- 
sent. 

9-11-210. Bond of applicant. 

9-11-211. Military personnel — Waiver of 
certain license require- 
ments — Proceedings. 

9-11-212. Application without other's 
consent — Penalties — 
Damages. 



SECTION. 

9-11-213. Persons who may solemnize 

marriages. 
9-11-214. Recordation of credentials of 

clerical character. 
9-11-215. Marriage ceremony. 
9-11-216. Solemnization contrary to law 

— Penalty. 

9-11-217. Failure to sign and return li- 
cense at time of marriage 

— Penalty. 

9-11-218. Return of executed license to 
clerk — Effect on bond. 

9-11-219. False return or record — Pen- 
alty. 

9-11-220. Duty of clerk on return of li- 
cense — Issuance of cer- 
tificate. 

9-11-221. Certified copies of record as evi- 
dence. 



FAMILY LAW 



144 



Cross References. Marriage license 
fees, generally, § 14-20-111. 

Marriage license fees, miscellaneous 
county clerk fees, § 21-6-406. 

Marriage registration, § 20-18-501. 

Effective Dates. Acts 1843, p. 55, § 3: 
Apr. 1, 1843. 

Acts 1873, No. 2, § 4: effective on pas- 
sage, provided the penalty prescribed in 
the act should not be enforced within 60 
days. 

Acts 1875, No. 127, § 10: effective 30 
days after passage. 

Acts 1885, No. 123, § 2: effective on 
passage. 

Acts 1901, No. 123, § 3: effective on 
passage. 

Acts 1941, No. 404, § 3: approved Mar. 
27, 1941. Emergency clause provided: "It 
being found by the General Assembly that 
this act is necessary for the better living 
conditions of the people of Arkansas and 
this act being necessary for the preserva- 
tion of the public health, peace and safety, 
an emergency is declared to exist and this 
act shall be in full force and effect from 
and after its passage." 

Acts 1945, No. 112, § 7: approved Feb. 
27, 1945. Emergency clause provided: 
"Due to prevailing conditions the need for 
such a law is urgent, therefore, it is nec- 
essary for the immediate preservation of 
the public peace, health and safety, an 
emergency is declared, and this act shall 
take effect and be in force from and after 
its passage." 

Acts 1967, No. 380, § 4: Mar. 15, 1967. 
Emergency clause provided: "It is hereby 
found and determined by the General As- 
sembly that there are many residents of 
this State of marriageable age in the 
Armed Forces of the United States; that 
such persons' furloughs are often too short 
to permit an Arkansas marriage because 
of the many and cumbersome require- 
ments of Arkansas law; that it is neces- 
sary that these requirements be waived to 
give special consideration to those persons 
who are residents of this State but who 
are on active duty in the Armed Forces of 
the United States; and that in order to 
remedy these onerous requirements of Ar- 
kansas in the case of military personnel 
and to encourage Arkansas marriages, it 
is necessary that this act become effective 
immediately. Therefore, an emergency is 
hereby declared to exist and this act being 
necessary for the immediate preservation 



of the public peace, health and safety of 
this State shall be in full force and effect 
from and after its passage and approval." 

Acts 1983, No. 419, § 3: Mar. 13, 1983. 
Emergency clause provided: "It is hereby 
found and determined by the General As- 
sembly that present law requires mar- 
riage license applications to be signed by 
at least one person other than the appli- 
cant; that such law is unduly burdensome 
and in need of revision; and that this Act 
is immediately necessary to provide such 
revision. Therefore, an emergency is 
hereby declared to exist and this Act being 
immediately necessary for the preserva- 
tion of the public peace, health and safety 
shall be in full force and effect from and 
after its passage and approval." 

Acts 1997, No. 862, § 5: Mar. 27, 1997. 
Emergency clause provided: "It is hereby 
found and determined by the General As- 
sembly that the current law relating to 
persons who may solemnize marriages is 
unclear with respect to the authority of 
some judges; that unless the ambiguity is 
corrected immediately, marriages by such 
judges may be the subject of controversy 
and may leave the validity of some mar- 
riages in doubt; that this act is designed to 
clarify this ambiguity and should be given 
effect immediately. Therefore, an emer- 
gency is declared to exist and this act 
being immediately necessary for the pres- 
ervation of the public peace, health and 
safety shall become effective on the date of 
its approval by the Governor. If the bill is 
neither approved nor vetoed by the Gov- 
ernor, it shall become effective on the 
expiration of the period of time during 
which the Governor may veto the bill. If 
the bill is vetoed by the Governor and the 
veto is overridden, it shall become effec- 
tive on the date the last house overrides 
the veto." 

Acts 2008 (1st Ex. Sess.), No. 3, § 5: 
Apr. 2, 2008. Emergency clause provided: 
"It is found and determined by the Gen- 
eral Assembly that questions concerning 
the application of Act 441 of 2007 as 
enacted have arisen, and differing inter- 
pretations by the courts and county clerks 
require the immediate correction and 
clarification of the law to ensure uniform 
application of the minimum age require- 
ment for marriage. Therefore, an emer- 
gency is declared to exist and this act 
being necessary for the preservation of the 
public peace, health, and safety shall be- 



145 MARRIAGE 9-11-201 

come effective on: 1. The date of its ap- during which the Governor may veto the 

proval by the Governor; 2. If the bill is bill; or 2. If the bill is vetoed by the 

neither approved nor vetoed by the Gov- Governor and the veto is overridden, the 

ernor, the expiration of the period of time date the last house overrides the veto." 

RESEARCH REFERENCES 

A.L.R. Validity of marriage as affected Ark. L. Rev. The Uniform Marriage 

by lack of legal authority of person solem- and Divorce Act: Analysis for Arkansas, 28 

nizing it. 13 A.L.R.4th 1323. Ark. L. Rev. 175. 

Am. Jur. 52 Am. Jur. 2d, Marriage, C.J.S. 55 C.J.S., Marriage, § 24 et seq. 
§§ 3, 9 et seq. 



9-11-201. Licenses required. 

(a) All persons hereafter contracting marriage in this state are 
required to first obtain a license from the clerk of the county court of 
some county in this state. 

(b) On and after July 1, 1997, the county clerk shall record the social 
security numbers of the persons obtaining a marriage license on the 
marriage license application or the coupon for the marriage license. If 
an applicant does not possess a social security number, the clerk shall 
note this representation on the marriage license application or the 
coupon for the marriage license. 

(c)(1) The county clerk shall transmit social security numbers of 
marriage license applicants to the Bureau of Vital Statistics of the 
Department of Health. The clerk is not required to otherwise maintain 
or report the social security numbers of marriage license applicants. 
Compliance with the social security number reporting requirements of 
this section by the clerk of the county court shall be deemed to satisfy 
licensing entity reporting requirements under this section relative to 
marriage licenses. 

(2) The bureau shall allow the Office of Child Support Enforcement 
of the Revenue Division of the Department of Finance and Administra- 
tion access to such social security information and on an automated 
basis to the maximum extent feasible. 

History. Acts 1875, No. 127, § 1, p. 2001, abolished chancery courts and es- 

260; C. & M. Dig., § 7057; Pope's Dig., tablished circuit courts as the trial courts 

§ 9039; A.S.A. 1947, § 55-201; Acts 1997, of original jurisdiction. The jurisdiction of 

No. 1163, § 2; 1997, No. 1296, § 41. the circuit courts now includes "all mat- 

A.C.R.C. Notes. Acts 1997, No. 1296 ters previously cognizable by Circuit, 

added material in addition to that which Chancery, Probate and Juvenile 

was added by Acts 1997, No. 1163. There- Courts...." 

fore, the two amendments were merged Cross References. County offices de- 

pursuant to § 1-2-303. fined, § 14-14-603. 

Ark. Const., Amend. 80, adopted by Distribution powers of county govern- 

voter referendum and effective July 1, ments, § 14-14-502. 



9-11-202 FAMILY LAW 146 

CASE NOTES 

Analysis city. De Potty v. De Potty, 226 Ark. 881, 

295 S.W.2d 330 (1956). 

Foreign License. Presumption of Legitimacy of Chil- 

Presumption of Legitimacy of Children. dren. 

Foreign License. The P resum P tion of legitimacy of chil- 

A i -j* in dren born during wedlock is not overcome 

Arkansas residents may legally con- by eviden ce that a marriage license for the 

tract marriage in Arkansas with a license parentg wag never issued or recorded? 

issued by a foreign state since the statute since marria ge license statutes are merely 

providing for an Arkansas marriage h- directory and not mandatory, and, al- 

cense for persons contracting marriage in though this section provides for the pro- 

the state is directory and not mandatory, curement of a license by those contracting 

so that a marriage was valid when per- marriage, Arkansas has no statute provid- 

formed by a duly qualified minister on the ing that a marriage is void when no li- 

Arkansas side of Texarkana for parties cense is obtained. Wright v. Vales, 1 Ark. 

who were licensed on the Texas side of the App. 175, 613 S.W.2d 850 (1981). 

9-11-202. Form of license. 

(a) The license may be in the following form: 

"State of Arkansas, 

County of 

To any person authorized by law to solemnize marriage: 

You are hereby commanded to solemnize the rites and publish the 

banns of matrimony between A. B., age years, and D. C, age 

years, according to law, and officially sign and return this license 

to the parties herein named. 

Witness my hand and official seal, this day of . . . ., 20 

[L. SJ 



A. B., County Clerk" 
(b) The party solemnizing the rites of matrimony shall endorse on 
the license his or her certificate of that fact in the following form: 

"State of Arkansas, 

County of ss 

I, A. B., do hereby certify that on the day of . . . ., 20 , I did 

duly, and according to law as commanded in the foregoing license, 
solemnize the rites and publish the banns of matrimony between the 
parties herein named. 

Witness my hand this .... day of . . . ., 20 



A. B., Justice of the Peace" 
(Or insert whatever title the party has, as minister, etc.) 
(c) If the parties intend to contract a covenant marriage, the appli- 
cation for a marriage license must also include the following statement 
completed by at least one (1) of the two (2) parties: 

"We, [insert name of spouse] and [insert name of spouse] , declare our 
intent to contract a covenant marriage and accordingly have executed 
the attached declaration of intent." 



147 MARRIAGE 9-11-203 

History. Acts 1875, No. 127, § 3, p. includes "all matters previously cogni- 

260; C. & M. Dig., § 7060; Pope's Dig., zable by Circuit, Chancery, Probate and 

§ 9042; A.S.A. 1947, § 55-204; Acts 2001, Juvenile Courts...." 

No. 1486, § 1. Cross References. County offices de- 

A.C.R.C. Notes. Ark. Const., Amend, fined, § 14-14-603. 

80, adopted by voter referendum and ef- Covenant Marriage Act, § 9-11-801 et 

fective July 1, 2001, abolished chancery geq 

courts and established circuit courts as Distribution powers of county govern- 

the trial courts of original jurisdiction. men f s 8 14-14-502 

The jurisdiction of the circuit courts now ' 

RESEARCH REFERENCES 

U. Ark. Little Rock L. Rev. Survey of sembly, Family Law, 24 U. Ark. Little 
Legislation, 2001 Arkansas General As- Rock L. Rev. 483. 

9-11-203. Issuance by clerks. 

(a) The clerks of the county courts of the several counties in this state 
are required to furnish the license upon: 

(1) Application's being made; 

(2) Being fully assured that applicants are lawfully entitled to the 
license; and 

(3) Receipt of his or her fee. 

(b) It shall be lawful for clerks of the circuit courts to issue marriage 
licenses in counties having two (2) judicial districts. 

(c)(1) In addition to the standard certificate of marriage issued under 
subsection (a) of this section, the county clerk shall offer and, upon 
payment of a fee established by regulation promulgated by the State 
Child Abuse and Neglect Prevention Board, issue an heirloom certifi- 
cate of marriage. 

(2)(A) The board shall adopt regulations for the design of the 
heirloom certificate and shall print and distribute the certificates to 
each county clerk in this state. 

(B)(i) The board shall set the amount of the fee for the heirloom 
certificates to exceed the estimated actual costs for the development 
and distribution of the certificates but not to exceed the estimated 
fair market value of a comparable artistic rendition. 

(ii) The fee is in addition to any other fee established by law for the 
issuance of a certificate of marriage. 

(iii) The additional fees from the sale of heirloom certificates shall 
be transmitted monthly by the county clerk to the Treasurer of State 
for deposit into the State Treasury to the credit of the Children's 
Trust Fund. 

(3)(A) The heirloom certificate shall be in a form consistent with the 
need to protect the integrity of vital records and suitable for display. 
(B) It may bear the seal of the state and may be signed by the 
Governor. 

(4) An heirloom certificate of marriage issued under this subsection 
has the same status as evidence as the standard certificate of marriage 
issued under subsection (a) of this section. 



9-11-204 



FAMILY LAW 



148 



(5) Heirloom certificates may be issued for any marriage certificate 
issued at any time in this state, whether before or after August 13, 
2001. 



History. Acts 1875, No. 127, § 2, p. 
260; 1901, No. 123, § 1, p. 194; C. & M. 
Dig., §§ 7058, 7059; Pope's Dig., §§ 9040, 
9041; A.S.A. 1947, §§ 55-202, 55-203; Acts 
2001, No: 968, § 1. 

A.C.R.C. Notes. As amended by Acts 
2001, No. 968, subdivision (c)(2)(A) con- 
tained an additional sentence which read: 
"The board may expend up to twenty-five 
thousand dollars ($25,000) of money ap- 
propriated from the Children's Trust 
Fund for the printing, distribution, and 
promotion of the heirloom certificates dur- 
ing the biennial period ending June 30, 
2003." 



Ark. Const., Amend. 80, adopted by 
voter referendum and effective July 1, 
2001, abolished chancery courts and es- 
tablished circuit courts as the trial courts 
of original jurisdiction. The jurisdiction of 
the circuit courts now includes "all mat- 
ters previously cognizable by Circuit, 
Chancery, Probate and Juvenile 
Courts...." 

Cross References. Additional county 
fee on marriage licenses, § 14-20-111. 

County offices defined, § 14-14-603. 

Distribution powers of county govern- 
ments, § 14-14-502. 



9-11-204. Issuance of license unlawfully — Penalty. 

If any county clerk in this state shall issue any license contrary to the 
provisions of this act, or to any persons who are declared by law as not 
entitled to the license, he or she shall be deemed guilty of a misde- 
meanor and upon conviction shall be fined in any sum not less than one 
hundred dollars ($100) nor more than five hundred dollars ($500). 



History. Acts 1875, No. 127, § 8 (1st 
part), p. 260; C. & M. Dig., § 7065; Pope's 
Dig., § 9047; A.S.A. 1947, § 55-214. 

A.C.R.C. Notes. Ark. Const., Amend. 
80, adopted by voter referendum and ef- 
fective July 1, 2001, abolished chancery 
courts and established circuit courts as 
the trial courts of original jurisdiction. 
The jurisdiction of the circuit courts now 
includes "all matters previously cogni- 



zable by Circuit, Chancery, Probate and 
Juvenile Courts...." 

Meaning of "this act". Acts 1875, No. 
127, codified as §§ 9-11-201 — 9-11-204, 
9-11-209, 9-11-210, 9-11-212, 9-11-216 — 
9-11-218, and 9-11-220. 

Cross References. County offices de- 
fined, § 14-14-603. 

Distribution powers of county govern- 
ments, § 14-14-502. 



9-11-205. Notice of intention to wed — Noncompliance, penal- 
ties, and effect. 

(a) No marriage license shall be issued by the clerks unless a notice 
of intention to wed shall have been signed by both of the applicants 
applying for the marriage license and filed with the county clerk where 
the license is obtained. 

(b) The notice shall state the name, age, and address of both parties 
desiring to wed. 

(c) The county clerk shall verify the age of both parties and may treat 
birth certificates as prima facie proof of age. 

(d) The notice of intention to wed referred to in this section shall be 
filed with the county clerk of the county where the marriage license is 
obtained. 



149 MARRIAGE 9-11-207 

(e) The county clerk may destroy the notice of intention to wed one 
(1) year after the date of its issuance. 

(f) Upon the failure on the part of the county clerk or any other 
person to comply with the provisions of this section, he or she shall be 
adjudged guilty of a misdemeanor and upon conviction shall be fined 
not less than one hundred dollars ($100) nor more than five hundred 
dollars ($500). 

(g) No marriage shall be void for failure to comply with the provi- 
sions of this section. 

(h) If applicable, the notice of intention to wed shall contain the 
declaration of intent for a covenant marriage as provided in the 
Covenant Marriage Act of 2001, § 9-11-801 et seq. 



History. Acts 1945, No. 112, §§ 1, 3-5 
1957, No. 119, § 1; 1959, No. 52, § 1 
1981, No. 788, § 1; 1983, No. 712, § 1 
A.S.A. 1947, §§ 55-205, 55-207 — 55-209 



The jurisdiction of the circuit courts now 
includes "all matters previously cogni- 
zable by Circuit, Chancery, Probate and 
Juvenile Courts...." 



Acts 2001, No. 1486, § 2. Cross References. Content of decla- 

A.C.R.C. Notes. Ark. Const., Amend, ration of intent § 9-11-804. 
80, adopted by voter referendum and ef- County offices denned, § 14-14-603. 

fective July 1, 2001, abolished chancery Distribution powers of county govern- 

courts and established circuit courts as men t s 8 14-14-502 
the trial courts of original jurisdiction. 

RESEARCH REFERENCES 

U. Ark. Little Rock L. Rev. Survey of sembly, Family Law, 24 U. Ark. Little 
Legislation, 2001 Arkansas General As- Rock L. Rev. 483. 

9-11-206. Clerk's fees. 

The fee prescribed by law for the issuance of the marriage license 
shall be paid to the clerk at the time the applicants apply for the 
marriage license and sign the notice of intention to wed. 

History. Acts 1945, No. 112, § 1; 1959, fees, generally, § 14-20-111. 

No. 52, § 1; 1981, No. 788, § 1; 1983, No. Marriage license fees, miscellaneous 

712, § 1; A.S.A. 1947, § 55-205. county clerk fees, § 21-6-406. 

Cross References. Marriage license 

9-11-207. Applicants for marriage licenses to be sober. 

It shall be unlawful for any clerk who is authorized to issue marriage 
licenses to furnish or sell to any person or persons a license to marry at 
a time when either of the contracting parties is visibly under the 
influence of intoxicating drinks or under the influence of any kind of 
drugs. The parties applying for the license shall at the time be duly 
sober. 

History. Acts 1941, No. 404, § 1; A.S.A. 
1947, § 55-210. 



9-11-208 FAMILY LAW 150 

9-11-208. License not issued to persons of the same sex. 

(a) It shall be the declared public policy of the State of Arkansas to 
recognize the marital union only of man and woman. No license shall be 
issued to persons to marry another person of the same sex and no 
same-sex marriage shall be recognized as entitled to the benefits of 
marriage. 

(b) Marriages between persons of the same sex are prohibited in this 
state. Any marriage entered into by persons of the same sex, when a 
marriage license is issued by another state or by a foreign jurisdiction, 
shall be void in Arkansas, and any contractual or other rights granted 
by virtue of that license, including its termination, shall be unenforce- 
able in the Arkansas courts. 

(c) However, nothing in this section shall prevent an employer from 
extending benefits to persons who are domestic partners of employees. 

(d) No license shall be issued to persons to marry unless and until 
the female shall attain the age of sixteen (16) years and the male the 
age of seventeen (17) years and then only by written consent by a 
parent or guardian until the male shall have attained the age of 
eighteen (18) years and the female the age of eighteen (18) years. 

History. Acts 1941, No. 404, § 2;A.S.A. section (c) pursuant to § l-2-303(d)(4). 

1947, § 55-211; Acts 1997, No. 146, §§ 1, Amendments. The 2007 amendment 

2; 2007, No. 441, § 3; 2008 (1st Ex. Sess.), deleted former (a) relating to age. 

No. 3, § 3. The 2008 (1st Ex. Sess.) amendment 

A.C.R.C. Notes. Former § 9-11-222 a dded (d). 
was added to this section as present sub- 

9-11-209. Proof of age — Parental consent. 

(a) Any person applying for the license to marry another may 
introduce the parent or guardian of himself or herself or the other party, 
or the certificate of the parent or guardian duly attested, to prove to the 
satisfaction of the clerk that the parties to the marriage are of lawful 
age. 

(b) In case either or both of the parties to the marriage are not of 
lawful age, it shall be the duty of the clerk, before issuing the license to 
require the party applying therefor to produce satisfactory evidence of 
the consent and willingness of the parent or guardian of the party to the 
marriage which shall consist of either verbal or written consent thereto. 

(c) If there are any doubts in the mind of the clerk as to the evidence 
of the consent and willingness of the parent or guardian of the party 
applying for the license or if the clerk is in doubt as to the true age of 
the party so making application, the clerk may require the applicants to 
furnish a copy of their birth certificates as proof of lawful age or may 
require the parties to make affidavit to the genuineness of the consent 
granted or to the correctness of the ages given. The affidavit so made 
shall be filed in the clerk's office for public inspection. 



151 



MARRIAGE 



9-11-211 



History. Acts 1875, No. 127, § 5, p. Dig., § 7062; Pope's Dig., § 9044; Acts 
260; 1885, No. 123, § 1, p. 200; C. & M. 1963, No. 117, § 1; A.S.A. 1947, § 55-212. 

CASE NOTES 



Analysis 

Purpose. 

Annulment. 

Perjury. 

Purpose. 

This section was enacted for the protec- 
tion of the county clerk and has nothing 
whatever to do with the annulment of 
marriages for failure to first obtain con- 
sent of parents or guardians. Withering- 
ton v. Witherington, 200 Ark. 802, 141 
S.W.2d 30 (1940). 



Annulment. 

False statement as to age in affidavit for 
marriage license did not estop affiant from 
seeking to annul the marriage on ground 
of nonage. Hood v. Hood, 206 Ark. 1057, 
178 S.W.2d 670 (1944). 

Perjury. 

Making false affidavit for license is per- 
jury. Cox v. State, 164 Ark. 126, 261 S.W. 
303 (1924). 



9-11-210. Bond of applicant. 

(a) Any person applying for a license under the provisions of this act 
shall be required to enter into bond to the State of Arkansas in the 
penal sum of one hundred dollars ($100) for the use of and benefit of the 
general fund of the county to ensure that the parties applying have a 
lawful right to the license and that they will faithfully carry into effect 
and comply with the provisions of this act. 

(b) The bond shall be void when the license is duly returned to the 
office of the county clerk, duly executed and officially signed by someone 
authorized by law to solemnize the rites of matrimony. 



History. Acts 1875, No. 127, § 4, p. 
260; C. & M. Dig., § 7061; Pope's Dig., 
§ 9043; Acts 1983, No. 419, § 1; A.S.A. 
1947, § 55-213; Acts 1999, No. 1540, § 1. 

A.C.R.C. Notes. Ark. Const., Amend. 
80, adopted by voter referendum and ef- 
fective July 1, 2001, abolished chancery 
courts and established circuit courts as 
the trial courts of original jurisdiction. 
The jurisdiction of the circuit courts now 



includes "all matters previously cogni- 
zable by Circuit, Chancery, Probate and 
Juvenile Courts...." 

Meaning of "this act". See note to 
§ 9-11-204. 

Cross References. County offices de- 
fined, § 14-14-603. 

Distribution powers of county govern- 
ments, § 14-14-502. 



9-11-211. Military personnel — Waiver of certain license re- 
quirements — Proceedings. 

(a)(1) Upon written petition being filed with the county clerk of any 
county in this state, the county court, after hearing, may in its 
discretion waive by written order the requirement of bond, as pre- 
scribed by § 9-11-210, and the consent of parents, as required by 
§§ 9-11-102 — 9-11-105. The court may authorize and direct the county 
clerk to forthwith issue a license to marry to any resident of this state 
who is on active duty with the armed forces of the United States of 



9-11-212 FAMILY LAW 152 

America or to any resident of this state to marry a person who is on 
active duty with the armed forces of the United States of America. 

(2) Nothing in this section is to be considered as reducing the 
statutory marriageable age of females not in the military service. 

(b)(1) The petition shall be signed and properly verified by both the 
parties seeking the license to marry and shall be styled "In the Matter 
of the Issuance of a Marriage License to a Member of the Armed Forces 
of the United States of America". 

(2) The petition shall set out the full name and address of each party, 
the military serial number of the service man or woman, rank, and 
military organization to which he or she is attached. 

(3) The birth certificate of the nonservice man or woman shall be 
attached to the petition as an exhibit. 

(4) The parties shall personally appear before the court, and the 
service man or woman will appear in uniform and exhibit to the court 
his or her military identification card. 

(5) The parties will be required to execute the notice of intention to 
wed as prescribed by § 9-11-205 and file the notice with the county 
clerk. 

(c) The county courts of this state for the purpose of this section shall 
be open and in session during regular office hours. 

History. Acts 1967, No. 380, §§ 1-3; includes "all matters previously cogni- 

A.S.A. 1947, §§ 55-247 — 55-249. zable by Circuit, Chancery, Probate and 

A.C.R.C. Notes. Ark. Const., Amend. Juvenile Courts...." 
80, adopted by voter referendum and ef- Cross References. County offices de- 
fective July 1, 2001, abolished chancery fined § 14-14-603. 

courts and established circuit courts as Distribution powers of county govern- 

the trial courts of original jurisdiction. me nts § 14-14-502. 
The jurisdiction of the circuit courts now 

9-11-212. Application without other's consent — Penalties — 
Damages. 

(a) If any person shall apply for and obtain a license to marry 
another, without first obtaining the consent of that party, the person 
shall be guilty of a misdemeanor and upon conviction shall be fined in 
any sum not less than ten dollars ($10.00) nor more than one hundred 
dollars ($100). The fines, when collected, shall be paid into the general 
fund of the county wherein the offense is tried. 

(b) The party so doing shall moreover be liable to the party injured in 
any sum that a court or jury of competent jurisdiction may adjudge for 
damages. 

History. Acts 1875, No. 127, § 7, p. § 9046; A.S.A. 1947, § 55-215; Acts 1999, 
260; C. & M. Dig., § 7064; Pope's Dig., No. 1540, § 2. 



153 MARRIAGE 9-11-213 

9-11-213. Persons who may solemnize marriages. 

(a) For the purpose of being registered and perpetuating the evi- 
dence thereof, marriage shall be solemnized only by the following 
persons: 

(1) The Governor; 

(2) Any former justice of the Supreme Court; 

(3) Any judges of the courts of record within this state, including any 
former judge of a court of record who served at least four (4) years or 
more; 

(4) Any justice of the peace, including any former justice of the peace 
who served at least two (2) terms since the passage of Arkansas 
Constitution, Amendment 55; 

(5) Any regularly ordained minister or priest of any religious sect or 
denomination; 

(6) The mayor of any city or town; 

(7) Any official appointed for that purpose by the quorum court of the 
county where the marriage is to be solemnized; or 

(8) Any elected district court judge and any former municipal or 
district court judge who served at least four (4) years. 

(b)(1) Marriages solemnized through the traditional rite of the Reli- 
gious Society of Friends, more commonly known as Quakers, are 
recognized as valid to all intents and purposes the same as marriages 
otherwise contracted and solemnized in accordance with law. 

(2) The functions, duties, and liabilities of a party solemnizing 
marriage, as set forth in the marriage laws of this state, in the case of 
marriages solemnized through the traditional marriage rite of the 
Religious Society of Friends shall be incumbent upon the clerk of the 
congregation or, in his or her absence, his or her duly designated 
alternate. 

History. Rev. Stat., ch. 94, § 10; Acts of original jurisdiction. Section 19(b)(2) 

1873, No. 2, § 1, p. 2; C. & M. Dig., conferred on district courts, "the jurisdic- 

§ 7046; Pope's Dig., § 9026; Acts 1947, tion vested in Municipal Corporation 

No. 231, § 1; 1977, No. 95, § 2; 1979, No. Courts, Police Courts, Justice of the Peace 

693, § 1; 1983, No. 850, § 1; A.S.A. 1947, Courts, and Courts of Common Pleas at 

§ 55-216; Acts 1987, No. 394, § 1; 1997, the time this Amendment takes effect," 

No. 862, § 1; 2001, No. 1068, § 1; 2003, and state that district courts shall assume 

No. 1185, § 16; 2007, No. 98, § 1. the jurisdiction of these courts of limited 

A.C.R.C. Notes. With respect to the juris diction on January 1, 2005. 

duties of persons solemnizing marriages, Amendments. The 2007 amendment, 

see also § 20-18-501 in (a)(4), deleted "of the county where the 

Ark. Const., Amend. 80, adopted by . ' . , . JW r ,/ « A 

; r J i cc 4.- t i 1 marriage is solemnized following Any 

voter referendum and effective July 1, . ,. ~^, „ , , ... , , «, 

2001, abolished chancery courts and es- J^f of the peace and substituted two 

tablished circuit courts as the trial courts (2) tor three {3) - 

RESEARCH REFERENCES 

U. Ark. Little Rock L.J. Shively, Sur- 
vey of Family Law, 3 U. Ark. Little Rock 
L.J. 223. 



9-11-214 



FAMILY LAW 



154 



9-11-214. Recordation of credentials of clerical character. 

(a) No minister of the gospel or priest of any religious sect or 
denomination shall be authorized to solemnize the rites of matrimony 
in this state until the minister or priest has caused to be recorded his or 
her license or credentials of his or her clerical character in the office of 
the county clerk of some county in this state. The minister or priest 
must also have obtained from the clerk a certificate, under his or her 
hand and seal, that the credentials are duly recorded in his or her office. 

(b) It shall be the duty of a minister of the gospel or priest to add to 
the certificate of marriage required by law a statement setting forth the 
county where and the time when his or her license or credentials were 
so recorded. 

(c) Any minister of the gospel, priest of any religious sect or denomi- 
nation, or any person purporting to be such, who shall solemnize the 
rites of matrimony contrary to the provisions of this section, shall be 
deemed guilty of a misdemeanor. On conviction he or she shall be fined 
in any sum not less than one hundred dollars ($100). 

(d)(1) It shall be the duty of the clerk and recorder in each county, 
seasonably to record, in a well-bound book to be kept for that purpose, 
all licenses or credentials of clerical character of the persons who 
deposit the licenses or credentials of clerical character with him or her 
for record. 

(2) Any clerk failing to comply with the provisions of this subsection 
shall, on motion of the party aggrieved, giving the clerk ten (10) days' 
notice in writing of the motion, be fined any sum not exceeding one 
hundred dollars ($100). 



History. Rev. Stat., ch. 94, §§ 11, 22, 
23; Acts 1843, §§ 2, 3, p. 55; 1873, No. 2, 
§§ 2, 3, p. 2; C. & M. Dig., §§ 7047, 7049, 
7053, 7054; Pope's Dig., §§ 9027, 9029, 
9033, 9034; Acts 1947, No. 93, § 1; A.S.A. 
1947, §§ 55-218 — 55-221. 

A.C.R.C. Notes. Ark. Const., Amend. 
80, adopted by voter referendum and ef- 
fective July 1, 2001, abolished chancery 
courts and established circuit courts as 
the trial courts of original jurisdiction. 



The jurisdiction of the circuit courts now 
includes "all matters previously cogni- 
zable by Circuit, Chancery, Probate and 
Juvenile Courts...." 

Cross References. Acts validating re- 
cordation of credentials of clerical charac- 
ter, § 9-11-703. 

County offices denned, § 14-14-603. 

Distribution powers of county govern- 
ments, § 14-14-502. 



CASE NOTES 



Analysis 

Construction. 
Revocation of Credentials. 

Construction. 

The statutes regulating and prescribing 
the manner and form in which marriages 
may be solemnized in this state are man- 
datory and not directory. Spicer v. Spicer, 
239 Ark. 1013, 397 S.W.2d 129 (1965). 



Revocation of Credentials. 

In a suit to enjoin a church organization 
and the county clerk from attempting to 
cancel licenses and credentials filed ac- 
cording to this section, civil courts will not 
assume jurisdiction of a dispute involving 
church doctrine or discipline unless prop- 
erty rights are involved. Kinder v. Webb, 
239 Ark. 1101, 396 S.W.2d 823 (1965). 



155 MARRIAGE 9-11-216 

9-11-215. Marriage ceremony. 

(a) When marriages are solemnized by a minister of the gospel or 
priest, the ceremony shall be according to the forms and customs of the 
church or society to which he or she belongs. When solemnized by a civil 
officer, the form observed shall be the one the officer deems most 
appropriate. 

(b) It shall be lawful for religious societies who reject formal ceremo- 
nies to join together in marriage persons who are members of the 
society according to the forms, customs, or rites of the society to which 
they belong, with the exception that the requirements set forth in the 
Covenant Marriage Act of 2001, § 9-11-801 et seq., shall be complied 
with if the parties enter into a covenant marriage. 

History. Rev. Stat., ch. 94, §§ 12, 13; C. Cross References. Covenant Mar- 

& M. Dig., §§ 7050, 7051; Pope's Dig., riage Act, § 9-11-801 et seq. 
§§ 9030, 9031; A.S.A. 1947, §§ 55-222, 
55-223; Acts 2001, No. 1486, § 3. 

RESEARCH REFERENCES 

U. Ark. Little Rock L. Rev. Survey of sembly, Family Law, 24 U. Ark. Little 
Legislation, 2001 Arkansas General As- Rock L. Rev. 483. 

CASE NOTES 

Construction. may be solemnized in this state are man- 

The statutes regulating and prescribing datory and not directory. Spicer v. Spicer, 
the manner and form in which marriages 239 Ark. 1013, 397 S.W.2d 129 (1965). 

9-11-216. Solemnization contrary to law — Penalty. 

(a) Any person who presumes to solemnize marriage in this state 
contrary to the provisions of this act shall be adjudged guilty of a 
misdemeanor and upon conviction shall be fined in any sum not less 
than one hundred dollars ($100) nor more than five hundred dollars 
($500). 

(b) The fine imposed by subsection (a) of this section shall be paid 
when collected into the general fund of the county in which the offense 
was committed. 

History. Acts 1875, No. 127, § 8 (last Meaning of "this act". See note to 
part), p. 260; C. & M. Dig., § 7066; Pope's § 9-11-204. 
Dig., § 9048; A.S.A. 1947, § 55-217; Acts 
1999, No. 1540, § 3. 



9-11-217 



FAMILY LAW 
CASE NOTES 



156 



Analysis 

Construction. 
Notary Public. 

Construction. 

The statutes regulating and prescribing 
the manner and form in which marriages 
may be solemnized in this state are man- 



datory and not directory. Spicer v. Spicer, 
239 Ark. 1013, 397 S.W.2d 129 (1965). 

Notary Public. 

A notary public has no authority to 
solemnize a marriage, and it is immate- 
rial that he told the parties he could not 
marry them. Pearce v. State, 97 Ark. 5, 
132 S.W. 986 (1910). 



9-11-217. Failure to sign and return license at time of marriage 
— Penalty. 

(a) Any person who fails to officially sign and return any license to 
the parties at the time of the marriage shall be adjudged guilty of a 
misdemeanor and upon conviction shall be fined in any sum not less 
than one hundred dollars ($100) nor more than five hundred dollars 
($500). 

(b) The fine imposed by subsection (a) of this section shall be paid 
when collected into the general fund of the county in which the offense 
was committed. 



History. Acts 1875, No. 127, § 8 (last 
part), p. 260; C. & M. Dig., § 7066; Pope's 



Dig., § 9048; A.S.A. 1947, § 55-217; Acts 
1999, No. 1540, § 4. 



9-11-218. Return of executed license to clerk — Effect on bond. 

(a) Any person obtaining a license under the provisions of this act 
shall be required to return the license to the office of the clerk of the 
county court within sixty (60) days from the date of the license. 

(b)(1) If the license is duly executed and officially signed by some 
person authorized by law to solemnize marriage in this state, the bond 
required by § 9-11-210 shall be deemed null and void. 

(2) Otherwise, it shall remain in full force and effect. 



History. Acts 1875, No. 127, § 6, p. 
260; C. & M. Dig., § 7063; Pope's Dig., 
§ 9045; A.S.A. 1947, § 55-224. 

A.C.R.C. Notes. Ark. Const., Amend. 
80, adopted by voter referendum and ef- 
fective July 1, 2001, abolished chancery 
courts and established circuit courts as 
the trial courts of original jurisdiction. 
The jurisdiction of the circuit courts now 



includes "all matters previously cogni- 
zable by Circuit, Chancery, Probate and 
Juvenile Courts...." 

Meaning of "this act". See note to 
§ 9-11-204. 

Cross References. County offices de- 
fined, § 14-14-603. 

Distribution powers of county govern- 
ments, § 14-14-502. 



157 MARRIAGE 9-11-220 

CASE NOTES 

Analysis Marriage Upheld. 

As a failure to do a ministerial act, i.e., 
Construction. to return a marriage license to the county 

Marriage Upheld. clerk within 60 days of its issuance, could 

not render a marriage void, the parties 
Construction. had solemnized their marriage by a wed- 

Failure to comply with Arkansas's li- ding ceremony, and the minister signed 
censing statutes, as distinguished from the marriage license, the trial court erred 
the solemnization statutes, does not void in ruling on summary judgment that the 
an otherwise valid marriage. Fryar v. Rob- parties were not married. Fryar v. Rob- 
erts, 346 Ark. 432, 57 S.W.3d 727 (2001). erts, 346 Ark. 432, 57 S.W.3d 727 (2001). 

9-11-219. False return or record — Penalty. 

If any person authorized to solemnize any marriage in this state shall 
willfully make a false return of any marriage or pretended marriage to 
the clerk and recorder, or if the clerk and recorder shall willfully make 
a false record of any return of a marriage license made to him or her, the 
offender shall be deemed guilty of a misdemeanor and on conviction 
shall be fined in any sum not less than one hundred dollars ($100). 

History. Rev. Stat., ch. 94, § 25; C. & 
M. Dig., § 7068; Pope's Dig., § 9050; 
A.S.A. 1947, § 55-225. 

9-11-220. Duty of clerk on return of license — Issuance of 
certificate. 

(a) Upon the return of any license officially signed as having been 
executed and that the parties therein named have been duly and 
according to law joined in marriage, the clerk issuing the license shall 
make a record thereof in the marriage record in his or her office. 

(b) The clerk shall immediately make out a certificate of the record, 
giving the names, date, book, and page, together with the name of the 
county and state, and attach the certificate to the license and return the 
license to the party presenting it. 

(c) The certificate shall be signed officially by the clerk and sealed 
with the county seal. 

(d) The circuit clerks in counties having two (2) judicial districts 
shall keep a record at the county site of each district in which marriage 
licenses shall be recorded. 

(e)(1) If a license has been returned and recorded by the clerk that 
contains clerical or scrivener's errors, the licensee may submit proof of 
the error to the circuit court in an ex parte proceeding. 

(2) The court, upon a finding of error, shall order the county clerk to 
correct the errors on the license. 

(3) The licensee shall not be charged a fee for filing a request to 
correct clerical or scrivener's errors. 

(f) On the face of the certificate shall appear the certification to the 
fact of marriage, including, if applicable, a designation that the parties 



9-11-221 FAMILY LAW 158 

entered into a covenant marriage signed by the parties to the marriage 
and the witnesses, and the signature and title of the officiant. 

History. Acts 1875, No. 127, § 9, p. The jurisdiction of the circuit courts now 

260; 1901, No. 123, § 2, p. 194; C. & M. includes "all matters previously cogni- 

Dig., §§ 7059, 7067; Pope's Dig., §§ 9041, zable by Circuit, Chancery, Probate and 

9049; A.S.A. 1947, §§ 55-226, 55-227; Acts Juvenile Courts...." 

2001, No. 751, § 1; 2001, No. 1486, § 4. Cross References. County offices de- 

A.C.R.C. Notes. Ark. Const., Amend, fined, § 14-14-603. 

80, adopted by voter referendum and ef- Covenant Marriage Act, § 9-11-801 et 

fective July 1, 2001, abolished chancery seq. 

courts and established circuit courts as Distribution powers of county govern- 

the trial courts of original jurisdiction, ments, § 14-14-502. 

RESEARCH REFERENCES 

U. Ark. Little Rock L. Rev. Survey of sembly, Family Law, 24 U. Ark. Little 
Legislation, 2001 Arkansas General As- Rock L. Rev. 483. 

9-11-221. Certified copies of record as evidence. 

The books of marriages and clerical credentials to be kept by the 
respective clerks and recorders and copies duly certified by the clerks 
and recorders shall be evidence in all the courts in this state. 

History. Rev Stat., ch. 94, § 24; C. & 
M. Dig., § 7055; Pope's Dig., § 9035; 
A.S.A. 1947, § 55-230. 

RESEARCH REFERENCES 

Ark. L. Rev. The Best Evidence Rule — Documentary Evidence — Arkansas, 15 
A Rule Requiring the Production of a Ark. L. Rev. 79. 
Writing to Prove the Writing's Contents, 
14 Ark. L. Rev. 153. 

CASE NOTES 

Rebuttal. rendered indispensably necessary by law 

The evidence of marriage may be rebut- to a valid marriage were wanting. Goset v. 
ted by proving that any circumstances Goset, 112 Ark. 47, 164 S.W 759 (1914). 

Subchapter 3 — Marriage Contracts Generally 

SECTION. SECTION. 

9-11-301. Execution of contract. 9-11-304. Effect of unrecorded contract. 

9-11-302. Acknowledgment or proof. 9-11-305. Contract or copy as evidence — 

9-11-303. Recordation — Effect. Conclusiveness. 



Publisher's Notes. This subchapter to antenuptial agreements made after 

was probably superseded by Acts 1981, July 1, 1981. This subchapter, however, 

No. 548 (repealed), which was formerly would continue to apply to antenuptial 

codified as subchapter 4 of this chapter, as agreements made prior to July 1, 1981. 



159 



MARRIAGE 



9-11-301 



Acts 1981, No. 548 was repealed and 
replaced by Acts 1987, No. 715, which now 
probably supersedes this subchapter and 
applies to premarital agreements ex- 
ecuted on or after July 20, 1987. 



Cross References. Promises made in 
consideration of marriage must be writ- 
ten, § 4-59-101. 



RESEARCH REFERENCES 



A.L.R. Enforceability of agreement re- 
quiring spouse's cooperation in obtaining 
religious bill of divorce. 29 A.L.R.4th 746. 

Parties' behavior during marriage as 
regarding contractual rights. 56A.L.R.4th 
998. 



Family court jurisdiction to hear con- 
tract claims. 46 A.L.R.5th 73. 

Am. Jur. 52 Am. Jur. 2d, Marriage, 
§§ 4-8 and § 98 et seq. 

C.J.S. 41 C.J.S., Husb. & Wife, § 60 et 
seq. 



CASE NOTES 



Acknowledgment and Recordation. 

Antenuptial contract neither recorded 
nor acknowledged was not invalid as be- 
tween the parties and their privies and 
could be pleaded in bar of wife's claim of 



homestead, dower and statutory allow- 
ances. Burnes v. Burnes, 203 Ark. 334, 157 
S.W.2d 24 (1942). 

Cited: Galbreath, Stewart & Co. v. 
Cook, 30 Ark. 417(1875). 



9-11-301. Execution of contract. 

All marriage contracts whereby any estate, real or personal, is 
intended to be secured or conveyed to any person, or whereby the estate 
may be affected in law or equity, shall be in writing acknowledged by 
each of the contracting parties or proved by one (1) or more subscribing 
witnesses. 

History. Rev. Stat., ch. 95, § 1; C. & M. 
Dig., § 7028; Pope's Dig., § 9008; A.S.A. 
1947, § 55-301. 

CASE NOTES 



Analysis 

Burden of Proof. 

Evidence. 

Knowledge. 

Partial Performance of Parol Agreement. 

Burden of Proof. 

Administrator of deceased husband's 
estate pleading antenuptial contract in 
bar to widow's claim of homestead, dower 
and statutory allowances had burden to 
prove that the contract had been know- 
ingly entered into. Burnes v. Burnes, 203 
Ark. 334, 157 S.W.2d 24 (1942). 



Evidence. 

Under this section, a postnuptial mar- 
riage settlement must be in writing and 
oral statements to the contrary fell short 
of establishing a binding property settle- 
ment. Rush v. Smith, 239 Ark. 874, 394 
S.W.2d 613 (1965). 

Knowledge. 

Antenuptial contract signed by woman, 
without knowledge of its provisions, was 
so unjust and unequitable as not to bar 
widow's claim. Burnes v. Burnes, 203 Ark. 
334, 157 S.W.2d 24 (1942). 

Evidence sufficient to prove antenuptial 



9-11-302 FAMILY LAW 160 

agreement was knowingly entered into by Partial Performance of Parol Agree- 

the wife without any fraud or misunder- ment. 

standing. Babb v. Babb, 270 Ark. 289, 604 A parol antenuptial agreement is not 

S.W.2d 574 (Ct. App. 1980). void but merely unenforceable; part per- 

Woman not permitted to excuse her formance subsequently acknowledged in 

allegedly unknowing entry into an anten- writing rendered it enforceable. Sims v. 

uptial agreement by saying she was "in Rober ts, 188 Ark> 1030> 68 S.W.2d 1001 

love." Babb v. Babb, 270 Ark. 289, 604 (1934) 
S.W.2d 574 (Ct. App. 1980). 

9-11-302. Acknowledgment or proof. 

Marriage contracts shall be acknowledged or proven before a court of 
record, before some judge or clerk of a court of record, or before any 
former judge of a court of record who served at least four (4) years, of 
the state in which the contract is made and executed, which acknowl- 
edgment or proof shall be taken and certified in the same manner as 
deeds of conveyance for lands are or shall be required by law to be 
acknowledged or proven. 

History. Rev. Stat., ch. 95, § 2; C. & M. 
Dig., § 7029; Pope's Dig., § 9009; Acts 
1983, No. 850, § 2; A.S.A. 1947, § 55-302. 

CASE NOTES 

Cited: Babb v. Babb, 270 Ark. 289, 604 
S.W.2d 574 (Ct. App. 1980). 

9-11-303. Recordation — Effect. 

(a) Every marriage contract whereby any real estate is conveyed or 
secured shall be recorded with the certificate of proof or acknowledg- 
ment in the office of the clerk and recorder of every county in which any 
estate intended to be affected or conveyed shall be situated. 

(b) When a marriage contract is deposited with the recorder of any 
county for record, it shall be deemed full notice to all persons of the 
contents thereof, as far as relates to real estate affected thereby in the 
county where it is deposited. 

History. Rev. Stat., ch. 95, §§ 3, 4; C. & §§ 9010, 9011; A.S.A. 1947, §§ 55-303, 
M. Dig., §§ 7030, 7031; Pope's Dig., 55-304. 

CASE NOTES 

Cited: Babb v. Babb, 270 Ark. 289, 604 
S.W.2d 574 (Ct. App. 1980). 

9-11-304. Effect of unrecorded contract. 

No marriage contract shall be valid or affect property, except between 
the parties thereto and those who have actual notice thereof, until it 



161 



MARRIAGE 



9-11-305 



shall be deposited for record with the clerk and recorder of the county 
where the real estate is situated. 

History. Rev. Stat., ch. 95, § 5; C. & M. 
Dig., § 7032; Pope's Dig., § 9012; A.S.A. 
1947, § 55-305. 

CASE NOTES 



Validity Between Parties. 

Failure to record acknowledged anten- 
uptial agreement did not affect its validity 



as between the parties and their privies. 
Davis v. Davis, 196 Ark. 57, 116 S.W.2d 

607 (1938). 



9-11-305. Contract or copy as evidence — Conclusiveness. 

(a) Marriage contracts duly proved or acknowledged, certified, or 
recorded shall be received as evidence in any court of record of this 
state, without further proof of their execution. 

(b) When it shall appear to a court that any marriage contract duly 
acknowledged or proved and recorded is lost or is not in the power of the 
party wishing to use it, a copy duly certified under the hand and seal of 
the clerk and recorder may be received in evidence. 

(c) Neither the certificate of acknowledgment nor probate of any 
marriage contract, nor the record or transcript thereof, shall be conclu- 
sive, but may be rebutted. 



History. Rev. Stat., ch. 95, §§ 6-8; C. & 
M. Dig., §§ 7033-7035; Pope's Dig., 



§§ 9013-9015; A.S.A. 1947, §§ 55-306 
55-308. 



RESEARCH REFERENCES 

Ark. L. Rev. Documentary Evidence — 
Arkansas, 15 Ark. L. Rev. 79. 

Subchapter 4 — Arkansas Premarital Agreement Act 



SECTION. 






SECTION. 


9-11-401. 


Definitions. 




9-11-408 


9-11-402. 


Formalities. 




9-11-409 


9-11-403. 


Content. 




9-11-410 


9-11-404. 


Effect of marriage. 




9-11-411. 


9-11-405. 


Amendment or revocation. 


9-11-412 


9-11-406. 


Enforcement. 




9-11-413 


9-11-407. 


Enforcement — Void 


marriage. 





Limitations of actions. 

Application and construction. 

Short title. 

Severability. 

Time of taking effect. 

Repeal. 



Publisher's Notes. Former subchapter 
4, concerning antenuptial contracts or 



settlements, was repealed by Acts 1987, 
No. 715, § 13. The former subchapter was 



9-11-401 



FAMILY LAW 



162 



derived from the following sources: 9-11-405. Acts 1981, No. 548, § 3; A.S.A. 

9-11-401. Acts 1981, No. 548, § 6;A.S.A. 1947, § 55-311. 

1947, § 55-314. 9-11-406. Acts 1981, No. 548, § 4; A.S.A. 

9-11-402. Acts 1981, No. 548, § 1;A.S.A. 1947, § 55-312. 

1947, § 55-309. 9-11-407. Acts 1981, No. 548, § 5; A.S.A. 

9-ll-403.Actsl981,No. 548, § 2; A.S.A. 1947 § 55.313 
1947, § 55-310. 

9-11-404. Acts 1981, No. 548, § 1; A.S.A. 
1947, § 55-309. 

RESEARCH REFERENCES 



A.L.R. Enforceability of agreement re- 
quiring spouse's cooperation in obtaining 
religious bill of divorce. 29 A.L.R.4th 746. 

Modern status of views as to validity of 
premarital agreements contemplating di- 
vorce or separation. 53 A.L.R.4th 22. 

Enforceability of premarital agree- 
ments governing support or property 
rights upon divorce or separation as af- 
fected by circumstances surrounding ex- 
ecution. 53 A.L.R.4th 85. 

Enforceability of premarital agree- 
ments governing support or property 
rights upon divorce or separation as af- 
fected by fairness or adequacy of those 
terms. 53 A.L.R.4th 161. 



Parties' behavior during marriage as 
regarding contractual rights. 56 A.L.R.4th 
998. 

Failure to disclose extent or value of 
property owned as ground for avoiding 
premarital contract. 3 A.L.R.5th 394. 

Family court jurisdiction to hear con- 
tract claims. 46 A.L.R.5th 73. 

Am. Jur. 41 Am. Jur. 2d, Husb. & Wife, 
§ 277 et seq. 

. C.J.S. 41 C.J.S., Husb. & W, § 60 et 
seq. 

U. Ark. Little Rock L.J. Survey — 
Family Law, 10 U. Ark. Little Rock L.J. 
577. 



9-11-401. Definitions. 

(1) "Premarital agreement" means an agreement between prospec- 
tive spouses made in contemplation of marriage and to be effective upon 
marriage. 

(2) "Property" means an interest, present or future, legal or equi- 
table, vested or contingent, in real or personal property, including 
income and earnings. 



History. Acts 1987, No. 715, § 1. 



CASE NOTES 



In General. 

Parties contemplating marriage may, by 
agreement, fix the rights of each in the 
property of the other differently than es- 
tablished by law; such agreements must 
be made in contemplation of the marriage 
lasting until death, rather than in con- 
templation of divorce. Lee v. Lee, 35 Ark. 
App. 192, 816 S.W.2d 625 (1991). 



An agreement that is not solely in- 
tended to be operative upon divorce is not 
void merely because it mentions or is 
operative upon divorce, among other con- 
tingencies. Lee v. Lee, 35 Ark. App. 192, 
816 S.W.2d 625 (1991). 



163 MARRIAGE 9-11-406 

9-11-402. Formalities. 

A premarital agreement must be in writing and signed and acknowl- 
edged by both parties. It is enforceable without consideration. 

History. Acts 1987, No. 715, § 2. 

9-11-403. Content. 

(a) Parties to a premarital agreement may contract with respect to: 

(1) the rights and obligations of each of the parties in any of the 
property of either or both of them whenever and wherever acquired or 
located; 

(2) the right to buy, sell, use, transfer, exchange, abandon, lease, 
consume, expend, assign, create a security interest in, mortgage, 
encumber, dispose of, or otherwise manage and control property; 

(3) the disposition of property upon separation, marital dissolution, 
death, or the occurrence or nonoccurrence of any other event; 

(4) the modification or elimination of spousal support; 

(5) the making of a will, trust, or other arrangement to carry out the 
provisions of the agreement; 

(6) the ownership rights in and disposition of the death benefit from 
a life insurance policy; 

(7) the choice of law governing the construction of the agreement; 
and 

(8) any other matter, including their personal rights and obligations, 
not in violation of public policy or a statute imposing a criminal penalty. 

(b) The right of a child to support may not be adversely affected by a 
premarital agreement. 

History. Acts 1987, No. 715, § 3. 

9-11-404. Effect of marriage. 

A premarital agreement becomes effective upon marriage. 

History. Acts 1987, No. 715, § 4. 

9-11-405. Amendment or revocation. 

After marriage, a premarital agreement may be amended or revoked 
only by a written agreement signed by the parties. The amended 
agreement or the revocation is enforceable without consideration. 

History. Acts 1987, No. 715, § 5. 

9-11-406. Enforcement. 

(a) A premarital agreement is not enforceable if the party against 
whom enforcement is sought proves that: 

(1) that party did not execute the agreement voluntarily; or 



9-11-406 



FAMILY LAW 



164 



(2) the agreement was unconscionable when it was executed and, 
before execution of the agreement, that party: 

(i) was not provided a fair and reasonable disclosure of the 
property or financial obligations of the other party; 

(ii) did not voluntarily and expressly waive after consulting with 
legal counsel, in writing, any right to disclosure of the property or 
financial obligations of the other party beyond the disclosure pro- 
vided; and 

(hi) did not have, or reasonably could not have had, an adequate 
knowledge of the property or financial obligations of the other party. 

(b) If a provision of a premarital agreement modifies or eliminates 
spousal support and that modification or elimination causes one (1) 
party to the agreement to be eligible for support under a program of 
public assistance at the time of separation or marital dissolution, a 
court, notwithstanding the terms of the agreement, may require the 
other party to provide support to the extent necessary to avoid that 
eligibility. 

(c) An issue of unconscionability of a premarital agreement shall be 
decided by the court as a matter of law. 



History. Acts 1987, No. 715, § 6. 



CASE NOTES 



Analysis 

Applicability. 
Classification of Property. 
Failure to Read Agreement. 
Present Value. 
Presumption of Concealment. 

Applicability. 

This section does not apply to a postn- 
uptial agreement and, thus, such an 
agreement was upheld as valid under con- 
tract elements where both parties waived 
and released any rights as a surviving 
spouse to elect to take against the other's 
will or to have any interest in the property 
of the deceased spouse. Stewart v. Combs, 
368 Ark. 121, 243 S.W.3d 294 (2006). 

Classification of Property. 

Where the agreement clearly stated 
that property acquired subsequent to the 
marriage shall be owned jointly, with each 
party entitled to one-half ownership in 
any such property, the fact that the hus- 
band bought property with his own money 
did not make that property his separate 
property. Lee v. Lee, 35 Ark. App. 192, 816 
S.W.2d 625 (1991). 



Failure to Read Agreement. 

Wife's failure to read the proposed 
agreement before she signed it did not 
excuse her from its consequences. Lee v. 
Lee, 35 Ark. App. 192, 816 S.W.2d 625 
(1991). 

Present Value. 

The chancellor's finding of the total 
present value of all property acquired sub- 
sequent to the marriage was clearly 
against the preponderance of the evi- 
dence, where he failed to consider all 
property acquired subsequent to the mar- 
riage. Lee v. Lee, 35 Ark. App. 192, 816 
S.W2d 625 (1991). 

Presumption of Concealment. 

Where the provisions for the wife are 
disproportionate to the means of the hus- 
band, a presumption arises that there has 
been a designed concealment, and such 
presumption places a burden on the hus- 
band to show by a preponderance of the 
evidence that the wife had knowledge of 
the character and extent of his assets, or 
ought to have had such knowledge at the 
time the agreement was signed. Lee v. 
Lee, 35 Ark. App. 192, 816 S.W2d 625 
(1991). 



165 MARRIAGE 9-11-411 

The presumption was overcome by proof riage, she had been on his farm; and she 

that the husband made available to the admitted that no pressure had been ap- 

wife a complete list of his assets, the value plied to force her to sign the agreement, 

thereof, and his estimated net worth; Lee v. Lee, 35 Ark. App. 192, 816 S.W.2d 

there was evidence that, before the mar- 625 (1991). 

9-11-407. Enforcement — Void marriage. 

If a marriage is determined to be void, an agreement that would 
otherwise have been a premarital agreement is enforceable only to the 
extent necessary to avoid an inequitable result. 

History. Acts 1987, No. 715, § 7. 

9-11-408. Limitations of actions. 

Any statute of limitations applicable to an action asserting a claim for 
relief under a premarital agreement is tolled during the marriage of the 
parties to the agreement. However, equitable defenses limiting the time 
for enforcement, including laches and estoppel, are available to either 
party. 

History. Acts 1987, No. 715, § 8. 

9-11-409. Application and construction. 

This subchapter shall be applied and construed to effectuate its 
general purpose to make uniform the law with respect to the subject of 
this act among states enacting it. 

History. Acts 1987, No. 715, § 9. act among states enacting it" refers to the 

A.C.R.C. Notes. The reference to "this Uniform Premarital Agreement Act. 

9-11-410. Short title. 

This subchapter may be cited as the Arkansas Premarital Agreement 
Act. 

History. Acts 1987, No. 715, § 10. 

9-11-411. Severability. 

If any provision of this subchapter or its application to any person or 
circumstance be held invalid, the invalidity does not affect other 
provisions or applications of this subchapter that can be given effect 
without the invalid provision or application, and to this end the 
provisions of this subchapter are severable. 

History. Acts 1987, No. 715, § 11. 



9-11-412 



FAMILY LAW 



166 



9-11-412. Time of taking effect. 

This subchapter takes effect July 20, 1987, and applies to any 
premarital agreement executed on or after that date. 



History. Acts 1987, No. 715, § 12. 

A.C.R.C. Notes. As enacted, this sec- 
tion provided for an effective date of July 
1, 1987. However, since the act contained 
no emergency clause, such effective date 
would be invalid under Arkansas case law 
(see State ex rel. Arkansas Tax Com. v. 



Moore, 103 Ark. 48, 145 S.W. 199 (1912) 
and related cases). Consequently, the gen- 
eral effective date for 1987 legislation was 
substituted in this section by the Arkan- 
sas Code Revision Commission pursuant 
to its authority under § 1-2-303. 



9-11-413. Repeal. 

The following acts and parts of acts are repealed: 

(a) Acts 1981, No. 548. 

(b) All laws and parts of laws in conflict with this subchapter. 

History. Acts 1987, No. 715, § 13. 

Subchapter 5 — Rights and Property of Married Persons 



SECTION. 

9-11-501. Construction of this section and 
§§ 9-11-509 — 9-11-514. 

9-11-502. Removal of disabilities of mar- 
ried women. 

9-11-503. Rights generally. 

9-11-504. Authority to make executory 
contracts — Power of at- 
torney. 

9-11-505. Control of separate real and 
personal property. 

9-11-506. Spouses not liable for each oth- 
er's antenuptial debts. 

9-11-507. Separate property of one spouse 
not liable for other 
spouse's debts. 

9-11-508. Contracts concerning separate 
property of one spouse not 
binding on other spouse. 



SECTION. 

9-11-509. 



9-11-510. 
9-11-511. 



9-11-512. 
9-11-513. 



9-11-514. 
9-11-515. 



Schedule of separate personal 
property — Filing — Ef- 
fect. 

Form of schedule. 

Filing of schedule by person 
selling or giving property 
— Effect of recording con- 
veyance or will. 

Effect of failure to file schedule. 

Control of one spouse's sepa- 
rate property by other 
spouse — Presumption of 
agency or trusteeship. 

Settlements in equity. 

Reformation of deeds. 



Cross References. Deeds between 
husband and wife, § 18-12-401. 

Effective Dates. Acts 1873, No. 126, 
§ 12: effective on passage. 

Acts 1893, No. 21, § 3: effective on pas- 
sage. 

Acts 1899, No. 5, § 2: effective on pas- 
sage. 



Acts 1915, No. 159, § 2: effective on 
passage. 

Acts 1919, No. 66, § 2: effective on pas- 
sage, relating back to passage of original 
act and its interpretation thereof. Ap- 
proved Feb. 11, 1919. 



167 



MARRIAGE 
RESEARCH REFERENCES 



9-11-502 



A.L.R. Deed to persons described as 
husband and wife but not legally married. 
9 A.L.R.4th 1189. 

Prior institution of annulment proceed- 
ings or other attack on validity of one's 
marriage as barring or estopping one from 
entitlement to property rights as surviv- 
ing spouse. 31 A.L.R.4th 1190. 

Validity and effect of one spouse's con- 
veyance to the other spouse of interest in 
property held as estate by entireties. 18 
A.L.R.5th 230. 

Property rights arising from relation- 
ship of couple cohabiting without mar- 
riage. 69 A.L.R.5th 219. 

Am. Jur. 41 Am. Jur. 2d, Husb. & Wife, 
§ 5 et seq. 

Ark. L. Rev. Personal Property — Own- 
ership of Wedding Gifts, 8 Ark. L. Rev. 
184. 

The Effect of Void and Voidable Mar- 
riages in Arkansas, 10 Ark. L. Rev. 188. 

Family Torts in Automobile Cases, 13 
Ark. L. Rev. 299. 

Torts and the Family — Areas of Liabil- 
ity, 14 Ark. L. Rev. 92. 



Torts — Assault and Battery — Liabil- 
ity of One Who Aids and Abets Where 
Principal Assailant Not Liable, 15 Ark. L. 
Rev. 201. 

Res Judicata — Privity Between Hus- 
band and Wife, 18 Ark. L. Rev. 103. 

Note, Imputed Negligence Under the 
Arkansas Comparative Liability Statute, 
Exception: Stull, Adm'x v. Ragsdale, 35 
Ark. L. Rev. 722. 

Note, Attwood v. Estate of Attwood: A 
Partial Abrogation of the Parental Immu- 
nity Doctrine, 36 Ark. L. Rev. 451. 

C.J.S. 41 C.J.S., Husb. & Wife, § 2 et 
seq. 

U. Ark. Little Rock L.J. Note, Torts — 
Negligence — Contributory Negligence of 
One Parent Is Imputed to the Other to 
Diminish the Latter's Recovery for the 
Death of a Minor Child. Stull v. Ragsdale, 
273 Ark. 277, 620 S.W2d 264, 26 
A.L.R.4th 385 (1981). 5 U. Ark. Little Rock 
L.J. 289. 

Harris, The Arkansas Marital Property 
Statute and the Arkansas Appellate 
Courts: Tiptoeing Together Through the 
Tulips, 7 U. Ark. Little Rock L.J. 1. 



9-11-501. Construction of this section and 
514. 



9-11-509 — 9-11- 



The rule that statutes in derogation of the common law shall be 
strictly construed shall have no application to this section and §§ 9-11- 
509 — 9-11-514. 



History. Acts 1875 (Adj. Sess.), No. 91, 
6, p. 172; C. & M. Dig., § 5596; Pope's 



Dig., § 7246; Acts 1981, No. 873, § 11; 
A.S.A. 1947, § 55-414. 



CASE NOTES 



Cited: Medlock v. Fort Smith Serv. Fin. 
Corp., 304 Ark. 652, 803 S.W.2d 930 
(1991). 



9-11-502. Removal of disabilities of married women. 

(a) Every married woman and every woman who may in the future 
become married shall have all rights to contract and be contracted with, 
to sue and be sued, and in law and equity shall enjoy all rights and be 
subjected to all the laws of this state, as though she were a femme sole. 



9-11-502 



FAMILY LAW 



168 



(b) It is expressly declared to be the intention of this section to 
remove all statutory disabilities of married women as well as common 
law disabilities. 

History. Acts 1915, No. 159, § 1; 1919, 
No. 66, § 1; C. & M. Dig., § 5577; Pope's 
Dig., § 7227; A.S.A. 1947, § 55-401. 

CASE NOTES 



Analysis 

Division of Property. 

Estates by Entirety. 

Liability of Husband. 

Minors. 

Partnership. 

Suits Between Husband and Wife. 

Suits by Married Women. 

Division of Property. 

A divorced wife's interest in property 
acquired by the joint labor of herself and 
her husband will be protected in equity, 
both at common law and under this sec- 
tion. Williams v. Williams, 186 Ark. 160, 
52 S.W2d 971 (1932). 

Estates by Entirety. 

This statute did not abolish estates by 
entirety. Parrish v. Parrish, 151 Ark. 161, 
235 S.W. 792 (1921). 

Liability of Husband. 

A husband is not liable for torts commit- 
ted by wife in husband's absence. Bour- 
land v. Baker, 141 Ark. 280, 216 S.W. 707 
(1919). 

Minors. 

This section was designed to emanci- 
pate married women from disabilities at- 
tendant upon their marital status but did 
not remove the disabilities of minority. 
Schrum v. Bolding, 260 Ark. 114, 539 
S.W2d 415 (1976), superseded by statute 
as stated in, Temple v. Tucker, 277 Ark. 
81, 639 S.W2d 357 (1982), superseded by 
statute as stated in, Hamm v. Office of 
Child Support Enforcement, 336 Ark. 391, 
985 S.W.2d 742 (1999) (decision under 
prior law). 



Partnership. 

A husband and wife may form a part- 
nership. Quinn v. Stuckey, 229 Ark. 956, 
319 S.W.2d 839 (1959). 

Suits Between Husband and Wife. 

A married woman may sue her husband 
in tort. Fitzpatrick v. Owens, 124 Ark. 167, 
186 S.W 832 (1916); Leach v. Leach, 227 
Ark. 599, 300 S.W.2d 15 (1957). 

A husband or wife may sue the other 
and either is a competent witness in suits 
between them. Comstock v. Comstock, 146 
Ark. 266, 225 S.W 621 (1920). 

Husband could maintain a suit against 
his wife for damages due to her negli- 
gence. Leach v. Leach, 227 Ark. 599, 300 
S.W2d 15 (1957). 

Suits by Married Women. 

Wife may sue for personal injuries sus- 
tained by her. Texarkana & Ft. Smith Ry. 
v. Adcock, 149 Ark. 110, 231 S.W 866 
(1921). 

Although a husband is ordinarily liable 
only for the necessaries of life furnished to 
his wife, medical expenses and drug bills 
she had incurred or might reasonably in- 
cur in the future were recoverable by 
injured wife. Holmes v. Hollingsworth, 
234 Ark. 347, 352 S.W2d 96 (1961). 

Under this statute, a married woman 
could bring her own action for injuries 
received in an automobile collision alleged 
to have been caused by decedent's negli- 
gence and the statute of nonclaim was not 
tolled as to such action by the absence of 
her husband in military service. Lopez v. 
Waldrum Estate, 249 Ark. 558, 460 
S.W2d 61 (1970). 

Cited: Lopez v. Waldrum Estate, 249 
Ark. 558, 460 S.W2d 61 (1970); Medlock v. 
Fort Smith Serv. Fin. Corp., 304 Ark. 652, 
803 S.W2d 930 (1991). 



169 



MARRIAGE 



9-11-503 



9-11-503. Rights generally. 

(a) A married person may bargain, sell, assign, and transfer his or 
her separate personal property, carry on any trade or business, and 
perform any labor or services on his or her sole and separate account. 

(b) The earnings of any married person from the trade, business, 
labor, or services shall be his or her sole and separate property and may 
be used or invested in the person's own name. 

(c) He or she may sue alone or be sued in the courts of this state on 
account of the property, business, or services. 

History. Acts 1873, No. 126, § 3, p. § 7231; Acts 1981, No. 873, § 1; A.S.A. 
382; C. & M. Dig., § 5581; Pope's Dig., 1947, § 55-402. 

CASE NOTES 



Analysis 

In General. 

Conduct of Business. 

Contracts. 

Necessaries. 

Partnership. 

Suit Against Married Woman. 

In General. 

This section removed the common law 
disability of coverture, and repealed the 
saving clause in statute of limitations in a 
woman's favor. Hershy v. Latham, 42 Ark. 
305 (1883); Batte v. McCaa, 44 Ark. 398 
(1884); McGaughey v. Brown, 46 Ark. 25 
(1885); Garland County v. Gaines, 47 Ark. 
558, 2 S.W. 460 (1886). 

Conduct of Business. 

This section empowers a woman to be- 
come something more than a trader in the 
commercial sense. The primary significa- 
tion of "business" is employment and in- 
cludes farming. Hickey v. Thompson, 52 
Ark. 234, 12 S.W. 475 (1889). 

This section confers the right to conduct 
business in the way and by the means 
usually employed in carrying on business. 
Cooper v. Burel, 129 Ark. 261, 195 S.W. 
356 (1917). 

Contracts. 

Husband and wife could not, by this 
section, contract between themselves. 
Spurlock v. Spurlock, 80 Ark. 37, 96 S.W 
753 (1906). (See however § 9-11-502.) 

Obligations between husband and wife 
incurred before marriage were not extin- 
guished by the marriage. McKie v. McKie, 
116 Ark. 68, 172 S.W 891 (1914). 



Clearly, the law in Arkansas provides 
that a married person can contract in his 
or her own right; he or she can sue or be 
sued in his or her own right. Medlock v. 
Fort Smith Serv. Fin. Corp., 304 Ark. 652, 
803 S.W2d 930 (1991). 

Necessaries. 

Sections 9-11-502 — 9-11-508 have not 
superseded the wife's necessaries doc- 
trine. Davis v. Baxter County Regional 
Hosp., 313 Ark. 388, 855 S.W2d 303 
(1993). 

Partnership. 

Wife may form a partnership in trade 
with any one, except her husband, and as 
to her separate estate, will be bound by all 
the contracts of the firm and to the same 
extent as if she were not married. Abbott 
v. Jackson, 43 Ark. 212 (1884). 

Under this section wife could not form a 
partnership with her husband. Gilkerson- 
Sloss Comm'n Co. v. Salinger, 56 Ark. 294, 
19 S.W 747 (1892). (See however § 9-11- 
502.) 

Suit Against Married Woman. 

The husband need not be joined in a suit 
against the wife. Arkansas Stables v. 
Samstag, 78 Ark. 517, 94 S.W 699 (1906); 
Alphin v. Wade, 89 Ark. 354, 116 S.W 667 
(1909). 

The burden of proof in an action seeking 
to enforce liability against a married 
woman is upon the plaintiff to show that 
the contract was one which she had the 
power to make. Hardin v. Jessie, 103 Ark. 
246, 146 S.W. 499 (1912). 

This section did not mean that in every 
instance a married woman must be sued 



9-11-504 FAMILY LAW 170 

alone. Williamson v. O'Dwyer & Ahern 
Co., 127 Ark. 530, 192 S.W 899 (1917). 

9-11-504. Authority to make executory contracts — Power of 
attorney. 

It shall be lawful for married women to make executory contracts and 
to execute letters of attorney containing a power to convey real estate as 
agents or attorneys that shall have the same force and effect as those 
made by unmarried persons. 

History. Acts 1895, No. 47, § 1, p. 58; thorizing execution of deeds and other 

Pope's Dig., § 7226; A.S.A. 1947, § 55- instruments of conveyance by married 

405. women through an agent, see Acts 1893, 

Publisher's Notes. For former act au- No. 21. 

CASE NOTES 

Analysis Covenants of Warranty. 

Married women became liable on their 

In General. contracts including covenants of warranty 

Covenants of Warranty. by the passage of this section. Tucker v. 

Ratification. Walker, 246 Ark. 177, 437 S.W2d 788 

_ n . (1969). 

In General. 

This section did not enlarge the powers Ratification. 

of a married woman other than to give Evidence sufficient to prove woman 

validity to her executory contracts. Sparks ratified a contract. Longino v. State, 158 

v. Moore, 66 Ark. 437, 56 S.W. 1064 (1899). Ark. 162, 249 S.W. 557 (1923). 

9-11-505. Control of separate real and personal property. 

(a) The real and personal property that any married person now 
owns, or has had conveyed to him or her by any person in good faith and 
without prejudice to existing creditors, that is acquired as sole and 
separate property, that comes to him or her by gift, bequest, descent, 
grant, or conveyance from any person, that he or she has acquired by 
trade, business, labor, or services carried on or performed on his or her 
sole or separate account, that a married person in this state holds or 
owns at the time of the marriage, and the rents, issues, and proceeds of 
all such property shall, notwithstanding the marriage, be and remain 
his or her sole and separate property 

(b) The separate property may be used, collected, and invested by 
him or her, in his or her own name, and shall not be subject to the 
interference or control of his or her spouse nor shall it be liable for the 
spouse's debts, except as may have been contracted for the support of 
the spouse, or support of the children of the marriage by the spouse or 
his or her agent. 

History. Acts 1873, No. 126, § 2, p. Cross References. Property of femme 

382; C. & M. Dig., § 5580; Pope's Dig., covert, Ark. Const., Art. 9, § 7. 
§ 7230; Acts 1981, No. 873, § 2; A.S.A. 
1947, § 55-404. 



171 



MARRIAGE 



9-11-506 



CASE NOTES 



Analysis 

Construction with Other Law. 

Conveyance. 

Curtesy. 

Liability for Debts. 

Construction with Other Law. 

Where decedent and his surviving 
spouse were married for only four years, 
the trial court did not clearly err in finding 
that the transfer-on-death (TOD) account 
was the sole and separate property of 
decedent's three children by a prior mar- 
riage as the named beneficiaries of the 
TOD account; the funds used to purchase 
the account were gained as the result of 
the sale of decedent's business, which he 
acquired before his marriage to the sur- 
viving spouse and continued to hold as his 
separate property during the course of the 
marriage, and the surviving spouse ad- 
mittedly had no ownership interest in the 
business, nor was their commingling of 
any funds between the surviving spouse 
and the decedent once they were married. 
Ginsburg v. Ginsburg, 359 Ark. 226, 195 
S.W.3d 898 (2004). 

Conveyance. 

A wife may convey her separate estate 
as a femme sole and even though convey- 
ance is without acknowledgment it would 
be valid between the parties. Johnson v. 
Graham Bros. Co., 98 Ark. 274, 135 S.W. 
853 (1911). 



Curtesy. 

If a woman makes no disposal of her 
separate property and there is issue born 
alive of the marriage, at her death hus- 
band's right of curtesy attaches as at 
common law. Neely v. Lancaster, 47 Ark. 
175, 1 S.W. 66 (1886). See also Percy v. 
Cockrill, 53 F. 872 (8th Cir. 1893); 
McGuire v. Cook, 98 Ark. 118, 135 S.W. 
840 (1911). 

Husband's right of curtesy is superior to 
claim of wife's creditors. Hampton v. Cook, 
64 Ark. 353, 42 S.W. 535 (1897). 

Liability for Debts. 

The contracts of a married woman will 
not be enforced against her separate es- 
tate, unless they are made in reference 
thereto, or for her personal benefit. Still- 
well v. Adams, 29 Ark. 346 (1874). 

If the obligation is for improvement or 
preservation of the wife's estate, it will be 
implied that her property is liable for the 
debt. Henry v. Blackburn, 32 Ark. 445 
(1877). 

A married woman may contract for im- 
provements upon her separate property 
and such a contract become the basis of a 
mechanic's lien for labor and materials. 
Hoffman v. McFadden, 56 Ark. 217, 19 
S.W. 753 (1892). 

Where husband was unable to pay on 
contract secured by a note executed by 
husband and wife to secure payment, the 
note was a valid obligation of the wife so 
far as it was for the benefit of her separate 
estate. Crenshaw v. Collier, 70 Ark. 5, 65 
S.W. 709 (1901). 



9-11-506. Spouses not liable for each other's antenuptial debts. 

In all marriages solemnized after February 1, 1899, neither spouse 
shall be held to be liable for the antenuptial debts of the other, except 
by virtue of an express written contract. 



History. Acts 1899, No. 5, § 1, p. 4; C. 
& M. Dig., § 5590; Pope's Dig., § 7240; 



Acts 1981, No. 873, 
§ 55-408. 



5; A.S.A. 1947, 



CASE NOTES 



Cited: Fitzpatrick v. Owens, 124 Ark. 
167, 186 S.W. 832 (1916). 



9-11-507 FAMILY LAW 172 

9-11-507. Separate property of one spouse not liable for other 
spouse's debts. 

The property of any male or female, whether real or personal, and 
whether acquired before or after marriage in that person's own right, 
shall not be sold to pay the debts of a spouse contracted for or damages 
incurred by the spouse before marriage. 

History. Rev. Stat., ch. 60, § 22; C. & 
M. Dig., § 5589; Pope's Dig., § 7239; Acts 
1981, No. 873, § 4; A.S.A. 1947, § 55-406. 

CASE NOTES 

Cited: Allen v. Hanks, 136 U.S. 300, 10 
S. Ct. 961, 34 L. Ed. 414 (1890). 

9-11-508. Contracts concerning separate property of one spouse 
not binding on other spouse. 

No bargain or contract made by any married person, in respect to his 
or her sole and separate property or any property that may come to him 
or her by descent, devise, bequest, purchase, or gift or grant of any 
person, and no bargain or contract entered into by any married person, 
in or about the carrying on of any trade or business, under any statute 
of the state, shall be binding upon his or her spouse or render his or her 
person or property in any way liable therefor. 

History. Acts 1873, No. 126, § 4, p. § 7232; Acts 1981, No. 873, § 3; A.S.A. 
382; C. & M. Dig., § 5582; Pope's Dig., 1947, § 55-407. 

CASE NOTES 

Divorce. Cited: Mattar Bros. v. Wathen, 99 Ark. 

This section does not control on the 329, 138 S.W. 455 (1911); Medlock v. Fort 

issue of marital debt associated with divi- Smith Serv. Fin. Corp., 304 Ark. 652, 803 

sion of property in a divorce case. Hunt v. S W2d 930 (1991) 
Hunt, 341 Ark. 173, 15 S.W.3d 334 (2000). 

9-11-509. Schedule of separate personal property — Filing — 
Effect. 

(a) A married person owning any separate personal property may 
make a schedule of the property and file it in the recorder's office of the 
county where he or she then lives. 

(b) The schedule so filed, or a duly certified copy thereof, under the 
hand and seal of the recorder, shall be prima facie evidence, in all courts 
and places, that the property mentioned in the schedule, together with 
the issues and increases of the property, is, and was at the date of the 
making of the schedule, the separate property of the married person. 

History. Acts 1875 (Adj. Sess.), No. 91, Dig., § 7241; Acts 1981, No. 873, § 6; 
§ 1, p. 172; C. & M. Dig., § 5591; Pope's A.S.A. 1947, § 55-409. 



173 MARRIAGE 9-11-511 

Cross References. Scheduling sepa- 
rate personal property of married women, 
Ark. Const., Art. 9, § 8. 

CASE NOTES 

Analysis the schedule. Berlin v. Cantrell, 33 Ark. 

611 (1878). 



Femme Sole. 



Purpose. 

Exchanged Property. 

Femme Sole schedules can only be filed by a married 

Money. woman, and a schedule filed by a femme 

sole will not avail upon her subsequent 

Purpose. marriage. Berlin v. Cantrell, 33 Ark. 611 

Failure to file a schedule will not en- (1878) 
large the common law estate of a husband 

in his wife's property. The object of the Money. 

statute was to increase the wife's rights A married woman is not required to 

and at the same time protect her hus- schedule her money. German Bank v. 

band's creditors. Coquard v. Pearce, 68 Himstedt, 42 Ark. 62 (1883). 

Ark. 93, 56 S.W. 641 (1900). Cited: Taylor v. De Lapp, 181 Ark. 

Exchanged Property. 1147 > 24 S-W.2d 862 (1930). 

Property for which scheduled property 
has been exchanged is not protected by 

9-11-510. Form of schedule. 

That schedule of a married person's separate property may be in the 
following form: 

"STATE OF ARKANSAS ) 

) 
COUNTY OF.... ) 

Be it known that I, , (Wife) (Husband) of of the County 

and State aforesaid, own in my own right the property below described, 
which I hereby schedule as my separate property, to-wit: 

(listing of property) 

Witness my hand this .... day of . . . ., 20 

SIGNATURE" 

History. Acts 1981, No. 873, § 12; A.S.A. 1947, 

Acts 1875 (Adj. Sess.), No. 91, § 7, p. 172; § 55-415. 
C. &M. Dig., § 5597; Pope's Dig., § 7247; 

9-11-511. Filing of schedule by person selling or giving property 
— Effect of recording conveyance or will. 

(a) Any persons who shall bona fide sell or give any property to a 
married person may schedule and record the sale or gift as the separate 
property of the married person, with the same and like effect as though 
the scheduling and recording had been done by the married person. 



9-11-512 FAMILY LAW 174 

(b) Any conveyance or will of property to a married person, on being 
duly recorded, shall have all the effect of a schedule under §§ 9-11-501 
and 9-11-509 — 9-11-514. 

History. Acts 1875 (Adj. Sess.), No. 91, Dig., § 7242; Acts 1981, No. 873, § 7; 
§ 2, p. 172; C. & M. Dig., § 5592; Pope's A.S.A. 1947, § 55-410. 

CASE NOTES 

Cited: Wallace v. Watson, 140 Ark. 430, 
215 S.W. 892 (1919). 

9-11-512. Effect of failure to file schedule. 

The separate estate and property of a married person shall not be 
forfeited nor shall any rights and title thereto be prejudiced by a failure 
or neglect to file a schedule. However, in any suit, action, or proceeding 
relating to the property when the property has not been scheduled and 
recorded the burden of proof shall rest upon the married person to show 
the property is his or her separate property. 

History. Acts 1875 (Adj. Sess.), No. 91, Dig., § 7243; Acts 1981, No. 873, § 8; 
§ 3, p. 172; C. & M. Dig., § 5593; Pope's A.S.A. 1947, § 55-411. 

9-11-513. Control of one spouse's separate property by other 
spouse — Presumption of agency or trusteeship. 

The fact that a married person permits his or her spouse to have the 
custody, control, and management of separate property shall not of 
itself be sufficient evidence that the married person has relinquished 
title to the property. However, the presumption shall be that the spouse 
is acting as the agent or trustee of the other. This presumption may be 
rebutted by any evidence establishing a sale or gift of the property to 
the other spouse. 

History. Acts 1875 (Adj. Sess.), No. 91, Dig., § 7244; Acts 1981, No. 873, § 9; 
§ 4, p. 172; C. & M. Dig., § 5594; Pope's A.S.A. 1947, § 55-412. 

CASE NOTES 

Analysis Presumption. 

Evidence sufficient to support presump- 
Burden of Proof. tion that husband acted as the agent of 

Presumption. the wife. Priddy v. Wood, 245 Ark. 209, 431 

Rebutting Evidence. S.W.2d 744 (1968). 

Burden of Proof. Rebutting Evidence. 

The burden is upon the husband to This section does not require that the 

repel the presumption even though prop- rebutting evidence should show a formal 

erty paid for by the wife is taken in the gift, it being sufficient if the proof shows 

husband's name. Gilbert v. Gilbert, 180 that the wife's property was used by the 

Ark. 596, 22 S.W.2d 32 (1929). husband in such manner as to preclude 



175 



MARRIAGE 



9-11-515 



the idea that she expected him to account 
to her as her agent or trustee. Wyatt v. 
Scott, 84 Ark. 355, 105 S.W 871 (1907). 

Evidence sufficient to rebut presump- 
tion that husband acted as wife's agent. 



Jones v. Seward, 265 Ark. 225, 578 S.W.2d 
16 (1979). 

Cited: Fletcher v. Dunn, 188 Ark. 734, 
67 S.W.2d 579 (1934). 



9-11-514. Settlements in equity. 

This section and §§ 9-11-501 and 9-11-509 — 9-11-513 shall not be 
construed to abridge the existing jurisdiction and powers of a court of 
equity to make a settlement upon a spouse out of his or her separate 
estate and property and otherwise protect his or her separate property 
rights. Such jurisdiction is extended to securing to each spouse his or 
her separate property as required by law. 



History. Acts 1875 (Adj. Sess.), No. 91, 
§ 5, p. 172; C. & M. Dig., § 5595; Pope's 



Dig., § 7245; Acts 1981, No. 873, § 10; 
A.S.A. 1947, § 55-413. 



9-11-515. Reformation of deeds. 

The circuit courts of this state shall reform all deeds or other 
instruments of conveyance of married women that have been executed 
and delivered to the purchaser wherein mistakes were or may be made 
by oversight in describing the property therein conveyed upon like 
conditions and to the same extent as if the married woman was a femme 
sole. 

History. Acts 1893, No. 21, § 2, p. 38; 
C. &M. Dig., § 5578; Pope's Dig., § 7228; 
A.S.A. 1947, § 55-403. 

CASE NOTES 



Analysis 

Dower. 
Proof. 

Dower. 

This statute has no application to relin- 
quishment of dower. Adcox v. James, 168 
Ark. 842, 271 S.W. 980 (1925). 



Proof. 

To reform a deed on ground of mistake 
the proof must be clear, unequivocal and 
decisive that the mistake was common to 
both parties and the deed as executed 
expressed the contract as understood by 
neither. McGuigan v. Gaines, 71 Ark. 614, 
77 S.W. 52 (1903). 



Subchapter 6 — Rights in Real Estate of Insane Spouse 



SECTION. 

9-11-601. Obligations to support spouse 

unaffected by subchapter. 
9-11-602. Sale of real estate free of dower 

or curtesy — Petition. 
9-11-603. Sale of real estate free of dower 

or curtesy — Order and 

deposit. 



SECTION. 

9-11-604. 



Setting apart dower or curtesy 
as life estate in certain 
lands. 



9-11-601 FAMILY LAW 176 

Effective Dates. Acts 1905, No. 337, able from a decedent's estate, and the 

§ 6: effective on passage. right of a surviving spouse to take against 

Acts 1907, No. 393, § 4: effective on the will of a decedent, do not in all circum- 

passage. stances provide for equal treatment be- 

Acts 1923, No. 472, § 2: approved Mar. tween the sexes? that the constitutionality 

2Sl- W2 h Emer ^ enc y cl * us f u P. rovide d- of such existing law has been drawn into 
This act being necessary for the immedi- ion fa defAaioBa of the United States 
ate preservation of the public peace, ~ >, , , , A , 
health and safety, an emergency is hereby Supreme Court and the Arkansas Su- 
declared to exist and this act shall take P reme Court > and that there 1S an ur ^ ent 
effect and be in force from and after its need to insure that the law provides 
passage." equality in the property rights and inter- 
Acts 1981, No. 714, § 75: Mar. 25, 1981. ests of married persons. Therefore, an 
Emergency clause provided: "It has been emergency is declared to exist, and this 
found and is declared by the General act being necessary for the preservation of 
Assembly of Arkansas that existing law the public peace, health and safety, shall 
relating to such matters as homestead, take effect and be in force from the date of 
dower, curtesy, statutory allowances pay- its approval." 



9-11-601. Obligations to support spouse unaffected by subchap- 
ter. 

Nothing in this subchapter shall be construed to release the plaintiff 
from any legal obligation the plaintiff may be under to support the 
defendant out of the plaintiffs estate, the same as if this subchapter 
had not been enacted. 

History. Acts 1905, No. 337, § 4, p. § 4450; Acts 1981, No. 714, § 12; A.S.A. 
794; C. & M. Dig., § 3564; Pope's Dig., 1947, § 59-704. 

9-11-602. Sale of real estate free of dower or curtesy — Petition. 

(a)(1) Any person owning lands in this state and whose spouse is 
adjudged insane may apply by petition to the circuit court of the county 
where the lands are situated for leave to sell the real estate, or any part 
thereof, discharged and unencumbered of the rights of dower or curtesy 
of the spouse. 

(2) The petition shall set forth the insanity of the spouse, the nature 
and duration thereof, the person with whom and the place at which the 
spouse may then be residing, the nature and object of the conveyance 
desired to be made, describing the real estate and giving the name of 
the person to whom the conveyance is intended to be made, and the 
consideration thereof, and that the intention of the conveyance is not to 
deprive the spouse of dower or curtesy, as the case may be, but to 
dispose of the real estate in the usual and ordinary course of business. 

(b) On the filing of the petition, the court shall appoint some reliable 
and disinterested citizen not related to either of the parties, nor 
interested directly or indirectly in the real estate or any part thereof 
described in the petition as guardian ad litem for the defendant. The 
guardian ad litem shall forthwith cause the appearance of the defen- 
dant to be entered of record in the case from time to time and make such 



177 MARRIAGE 9-11-603 

pleadings in the case as may seem fit to him or her for the interest of his 
or her ward and be consistent with the practice of the court. All acts of 
the guardian ad litem shall be deemed valid and binding on the 
defendant. 

History. Acts 1905, No. 337, § 1, p. § 4447; Acts 1981, No. 714, § 10; A.S.A. 
794; C. & M. Dig., § 3561; Pope's Dig., 1947, § 59-701. 

9-11-603. Sale of real estate free of dower or curtesy — Order 
and deposit. 

(a) Upon the hearing of the petition, if the court deems it to be in the 
best interest of the parties that the land be sold, it may make an order 
that the plaintiff may sell the land free and discharged and unencum- 
bered of the right of dower or curtesy, as the case may be. 

(b) In every such order, the court shall adjudge as part of the order 
that before the sale shall become effective, the petitioner or his or her 
grantee shall deposit in the registry of the court, in cash, one-third (Vs) 
of the purchase price of the lands to be disposed of as provided in this 
section. In all such sales, the sale shall be reported to the circuit court 
and the sale approved thereby. 

(c)(1) The deposit of one-third (V3) of the purchase price of the land 
shall be held in trust by the clerk of the court and loaned out by him or 
her under the order of the court from time to time at the highest 
obtainable rate of interest, upon security to be approved by the court or 
judge in vacation. The clerk shall be responsible therefor on his or her 
official bond. 

(2) The interest on the money shall be paid over annually to the 
plaintiff. However, the court may make, upon application, of which the 
plaintiff shall be notified, and on reasonable showing, reasonable 
allowance out of the interest from time to time for the support of the 
defendant. 

(d)(1) Should the insane defendant be survived by the plaintiff, the 
deposit shall be paid over to the plaintiff upon the plaintiffs application 
to the court. If the plaintiff survives the defendant but dies before an 
order of the court is actually made to pay the moneys over to the 
plaintiff, then the moneys shall descend to the plaintiffs heirs at law as 
realty and shall be paid over to the plaintiffs heirs or legal represen- 
tatives according to law or the lawful order of the circuit court. 

(2) In the event that the plaintiff is survived by the defendant, the 
interest accruing on the deposit shall be paid over to the defendant only 
during the defendant's natural life. At the defendant's death the deposit 
shall descend to the heirs at law of the plaintiff as realty and shall be 
paid over to the plaintiffs heirs or legal representatives according to 
law or the lawful order of the circuit court. 

History. Acts 1905, No. 337, §§ 2-5, p. §§ 11-13; A.S.A. 1947, §§ 59-702 — 59- 
794; C. & M. Dig., §§ 3562-3565; Pope's 705. 
Dig., §§ 4448-4451; Acts 1981, No. 714, A.C.R.C. Notes. Ark. Const., Amend. 



9-11-604 FAMILY LAW 178 

80, adopted by voter referendum and ef- The jurisdiction of the circuit courts now 

fective July 1, 2001, abolished chancery includes "all matters previously cogni- 

courts and established circuit courts as zable by Circuit, Chancery, Probate and 

the trial courts of original jurisdiction. Juvenile Courts...." 

9-11-604. Setting apart dower or curtesy as life estate in certain 
lands. 

(a)(1) Any person owning lands in this state whose spouse is ad- 
judged permanently insane may apply by petition to the circuit court of 
the county where the lands or the greater part thereof are situated to 
have a life estate in a part of the lands set apart to the spouse in lieu of 
the spouse's inchoate right of dower or curtesy, as the case may be, in all 
of the lands and the remaining lands discharged and unencumbered of 
the dower or curtesy interest of the spouse. 

(2) The petition shall set forth the insanity of the spouse, the nature 
and duration thereof, the person with whom and the place at which the 
spouse may then be residing, describing all the real estate of the 
plaintiff, and that it will be to the best interest of all parties. 

(b) On the filing of the petition, the court shall appoint some reliable 
person, a citizen of the county, not related to either of the parties nor 
interested directly or indirectly in the real estate nor in any part thereof 
as guardian ad litem for the spouse. The guardian ad litem shall 
forthwith cause the appearance of the spouse to be entered of record in 
the case and make such pleadings in the case from time to time as may 
seem fit to him or her for the interest of his or her ward and be 
consistent with the practice of the court. All acts of the guardian ad 
litem shall be deemed valid and binding on his or her ward. 

(c) The court on hearing the petition and being satisfied that it will 
be to the best interests of the parties to have the life estate in a part of 
the lands set apart to the spouse in lieu of dower or curtesy in the whole 
of the lands shall appoint three (3) persons as commissioners not 
interested in the lands nor in any part thereof who shall set apart the 
life estate in lieu of dower or curtesy, designating specifically the lands. 
They shall make their report to the court, which report shall be subject 
to the approval of the court. 

(d) On approval of the report of the commissioners, the court shall 
make an order and decree divesting the dower or curtesy of the spouse 
out of the real estate of the plaintiff and in lieu thereof vesting in the 
spouse a life estate of the lands designated by the commissioners, and 
authorizing and empowering the plaintiff to sell the remainder of the 
lands or to mortgage and encumber the remainder of the lands free 
from any dower or curtesy rights of the spouse. 

History. Acts 1907, No. 393, §§ 1-3, p. 4454; Acts 1981, No. 714, §§ 14-16; A.S.A. 
985; C. & M. Dig., §§ 3566-3568; Acts 1947, §§ 59-706 — 59-708. 
1923, No. 472, § 1; Pope's Dig., §§ 4452- 



179 



MARRIAGE 
Subchapter 7 — Validating Acts 



9-11-701 



SECTION. SECTION. 

9-11-701. Persons acting for clerk. 9-11-704. 

9-11-702. Marriages performed by may- 
ors. 9-11-705. 

9-11-703. Recordation of credentials of 

clerical character — Appli- 9-11-706. 
cabilityof§ 9-11-214. 



Marriages solemnized out of 
county. 

Marriages solemnized by mu- 
nicipal court judges. 

Marriage before entry of di- 
vorce decree. 



Effective Dates. Acts 1843, p. 55, § 3: 
Apr. 1, 1843. 

Acts 1873, No. 2, § 4: effective on pas- 
sage, provided the penalty prescribed in 
the act should not be enforced within 60 
days. 

Acts 1885, No. 110, § 3: effective on 
passage. 

Acts 1945, No. 6, § 3: approved Jan. 26, 
1945. Emergency clause provided: "On ac- 
count of the fact that persons other than 
county clerks or their deputies have is- 
sued marriage licenses and the legality of 
the marriages consummated thereunder 
has been called into question by reason of 
the fact that such licenses were not issued 
by the county clerk or his legally ap- 
pointed deputy an emergency is found to 
exist and this act, being necessary for the 
immediate preservation of the public 
peace, health and safety shall take effect 
and be in force from and after its passage." 



Acts 1989 (3rd Ex. Sess.), No. 46, § 11: 
approved Nov. 14, 1989. Emergency 
clause provided: "It is hereby found and 
determined by the General Assembly that 
there is an urgent need to validate other- 
wise legal marriages declared void by 
court decisions, to declare and preserve 
the legitimacy of the children born of such 
marriages, and to validate all property 
rights between the parties themselves 
and third persons; that it is in the best 
interest of the state that this act declaring 
such marriages take effect immediately. It 
is further determined that it is in the best 
interest of the state that the actions of 
alienation of affection and criminal con- 
versation be abolished immediately. 
Therefore, an emergency is declared to 
exist and this act being necessary for the 
preservation of the public peace, health 
and safety shall be in full force and effect 
from and after its passage." 



RESEARCH REFERENCES 



A.L.R. Validity of marriage as affected 
by lack of legal authority of person solem- 
nizing it. 13 A.L.R.4th 1323. 



Am. Jur. 

§ 33 et seq. 
C.J.S. 55 C.J.S 



52 Am. Jur. 2d, Marriage, 
Marriage, § 28 et seq. 



9-11-701. Persons acting for clerk. 

(a) The acts and deeds of all persons acting for and in behalf of any 
county clerk in this state in the issuance of marriage licenses prior to 
January 26, 1945, whether the person was a duly and legally appointed 
deputy of the county clerk or not, are declared to be as legal and valid 
as if the licenses had been issued by the county clerk in person. 

(b) All marriages solemnized in this state prior to January 26, 1945, 
pursuant to a marriage license issued by a person other than the county 
clerk of the county wherein the license was issued or by the legally 
appointed deputy of the county clerk are declared to be valid. All the 



9-11-702 FAMILY LAW 180 

marriages shall be as binding and effectual as if the licenses had been 
issued by the county clerk of the county in person. 

History. Acts 1945, No. 6, §§ 1, 2; 

A.S.A. 1947, §§ 55-231, 55-232. 

9-11-702. Marriages performed by mayors. 

All marriage ceremonies performed by mayors in the State of Arkan- 
sas prior to June 12, 1947, are declared to be valid. 

History. Acts 1947, No. 231, § 2; A.S.A. 
1947, § 55-216n. 

9-11-703. Recordation of credentials of clerical character — 
Applicability of § 9-11-214. 

(a) Section 9-11-2 14(a) and (b) shall not apply to those ministers and 
priests who properly filed their credentials prior to February 18, 1947, 
according to the law as it existed at the time the credentials were filed. 

(b) Any marriage solemnized by any regularly ordained minister or 
priest of any religious sect or denomination in this state prior to 
February 18, 1947, is declared legal and valid, whether or not the 
minister or priest caused his or her license or credentials to be recorded 
as provided by § 9- 11-2 14(a) and (b). 

History. Acts 1843, § 2, p. 55; 1873, which validated marriages conducted by 

No. 2, § 2, p. 2; C. & M. Dig., § 7047; ministers or priests who had failed to 

Pope's Dig., § 9027; Acts 1947, No. 93, record their credentials were: Acts 1881, 

§§ 1, 2; A.S.A. 1947, §§ 55-218, 55-218n. No. 93; Acts 1891, No. 37; Acts 1917, No. 

Publisher's Notes. Previous acts 253. 

9-11-704. Marriages solemnized out of county. 

(a) All marriages between persons authorized to contract marriage 
and solemnized prior to March 31, 1885, by any justice of the peace, or 
any other person authorized by law to solemnize the rites of matrimony, 
of any county in any other county in this state, and the persons 
afterwards lived together as husband and wife, are declared to be legal 
and their children legitimate. 

(b) All marriages so solemnized prior to March 31, 1885, by any 
justice of the peace, or any other person authorized by law to solemnize 
the rites of matrimony, of any county in any other county are legalized 
and made as binding between the married persons in every respect as 
if the rites of matrimony had been solemnized by a justice of the peace 
of the county where the marriage was solemnized. 

History. Acts 1885, No. 110, §§ 1, 2, p. Dig., §§ 9052, 9053; A.S.A. 1947, §§ 55- 
182; C. & M. Dig., §§ 7070, 7071; Pope's 233, 55-234. 



181 MARRIAGE 9-11-706 

9-11-705. Marriages solemnized by municipal court judges. 

All marriages solemnized by municipal court judges prior to July 20, 
1987, are declared valid ab initio. 

History. Acts 1987, No. 394, § 2. 

9-11-706. Marriage before entry of divorce decree. 

(a) It is the intent of this section to validate all marriages deemed 
void as a result of the decision of the Supreme Court in Standridge v. 
Standridge, 298 Ark. 494, 769 S.W.2d 12 (1989), whether occurring 
prior to or subsequent to November 14, 1989. 

(b)(1) All marriages heretofore or hereafter declared void because the 
parties had entered into an otherwise valid marriage after the rendition 
of a valid decree of divorce of either of the parties but before the entry 
for record of the decree are declared valid for all purposes. 

(2) All children born to any marriage declared valid by this section 
are deemed to be the legitimate children of both parents for all 
purposes. 

(3) All property rights, including, but not limited to, conveyances, 
inheritance, intestate succession, dower, curtesy, and all rights and 
duties between the parties themselves or third persons, are declared to 
be those of validly married persons. 

(c) This section shall apply to all marriages occurring both prior and 
subsequent to November 14, 1989. 

History. Acts 1989 (3rd Ex. Sess.), No. 
46, §§ 1-5. 

RESEARCH REFERENCES 

U. Ark. Little Rock L.J. Survey, Fam- 
ily Law, 12 U. Ark. Little Rock L.J. 631. 

Subchapter 8 — Covenant Marriage Act 



Applicability to already mar- 
ried couples. 
Divorce or separation. 
Suit against spouse — Separa- 
tion. 
Effects of separation. 
9-11-811. Informational pamphlet. 



Effective Dates. Acts 2003, No. 1473, rects to Act 923 of 2003 which establishes 

§ 74: July 1, 2003. Emergency clause pro- the classification and compensation levels 

vided: "It is found and determined by the of state employees covered by the provi- 

General Assembly of the State of Arkan- sions of the Uniform Classification and 

sas that this act includes technical cor- Compensation Act; that Act 923 of 2003 



SECTION. 




SECTION. 


9-11-801. 


Title. 


9-11-807 


9-11-802. 


Definitions. 




9-11-803. 


Covenant marriage. 


9-11-808 


9-11-804. 


Content of declaration of in- 
tent. 


9-11-809 


9-11-805. 


Form of affidavit. 


9-11-810 


9-11-806. 


Other applicable rules. 


9-11-811. 



9-11-801 FAMILY LAW 182 

will become effective on July 1, 2003; and being necessary for the preservation of the 

that to avoid confusion this act must also public peace, health, and safety shall be- 

effective on July 1, 2003. Therefore, an come effective on July 1, 2003." 
emergency is declared to exist and this act 



9-11-801. Title. 

This subchapter shall be known and may be cited as the "Covenant 
Marriage Act of 2001". 

History. Acts 2001, No. 1486, § 5. 

RESEARCH REFERENCES 

U. Ark. Little Rock L. Rev. Survey of The Shackles of Covenant Marriage: 

Legislation, 2001 Arkansas General As- Who Holds the Keys to Wedlock?, 25 U. 

sembly, Family Law, 24 U. Ark. Little Ark. Little Rock L. Rev. 261. 
Rock L. Rev. 483. 

9-11-802. Definitions. 

As used in this subchapter: 

(1) "Authorized counseling" means marital counseling provided by: 
(A)(i) A priest; 

(ii) A minister; 
(hi) A rabbi; 

(iv) A clerk of the Religious Society of Friends; or 
(v) Any clergy member of any religious sect or a designated 
representative; 

(B) A marriage educator approved by the person who will perform 
the marriage ceremony; or 

(C) As defined by § 17-27-102: 

(i) A licensed professional counselor; 

(ii) A licensed associate counselor; 

(hi) A licensed marriage and family therapist; 

(iv) A licensed clinical psychologist; or 

(v) A licensed associate marriage and family therapist; and 

(2) "Judicial separation" means a judicial proceeding pursuant to 
§ 9-11-809 that results in a court determination that the parties to a 
covenant marriage live separate and apart. 

History. Acts 2001, No. 1486, § 5; 
2003, No. 1115, § 1; 2003, No. 1473, § 15. 

9-11-803. Covenant marriage. 

(a)(1) A covenant marriage is a marriage entered into by one (1) male 
and one (1) female who understand and agree that the marriage 
between them is a lifelong relationship. 



183 MARRIAGE 9-11-804 

(2) Parties to a covenant marriage will have received authorized 
counseling emphasizing the nature, purposes, and responsibilities of 
marriage. 

(3) Only when there has been a complete and total breach of the 
marital covenant commitment may a party seek a declaration that the 
marriage is no longer legally recognized. 

(b)(1) A man and a woman may contract a covenant marriage by 
declaring their intent to do so on their application for a marriage license 
as otherwise required under this chapter and executing a declaration of 
intent to contract a covenant marriage as provided in § 9-11-804. 

(2) The application for a marriage license and the declaration of 
intent shall be filed with the official who issues the marriage license. 

History. Acts 2001, No. 1486, § 5. 

9-11-804. Content of declaration of intent. 

(a) A declaration of intent to contract a covenant marriage shall 
contain all of the following: 

(1) A recitation signed by both parties to the following effect: 

"A COVENANT MARRIAGE 

We do solemnly declare that marriage is a covenant between a man 
and a woman who agree to live together as husband and wife for so 
long as they both may live. We have chosen each other carefully and 
disclosed to one another everything which could adversely affect the 
decision to enter into this marriage. We have received authorized 
counseling on the nature, purposes, and responsibilities of marriage. 
We have read the Covenant Marriage Act of 2001, and we understand 
that a covenant marriage is for life. If we experience marital 
difficulties, we commit ourselves to take all reasonable efforts to 
preserve our marriage, including marital counseling. 

With full knowledge of what this commitment means, we do hereby 
declare that our marriage will be bound by Arkansas law on covenant 
marriages, and we promise to love, honor, and care for one another as 
husband and wife for the rest of our lives."; 

(2)(A) An affidavit by the parties that they have received authorized 
counseling that shall include a discussion of the seriousness of 
covenant marriage, communication of the fact that a covenant 
marriage is a commitment for life, a discussion of the obligation to 
seek marital counseling in times of marital difficulties, and a discus- 
sion of the exclusive grounds for legally terminating a covenant 
marriage by divorce. 

(B) An attestation, signed by the counselor and attached to or 
included in the parties' affidavit, confirming that the parties received 
authorized counseling as to the nature and purpose of the marriage 
and the grounds for termination of the marriage and an acknowledg- 
ment that the counselor provided to the parties the informational 
pamphlet developed and promulgated by the Administrative Office of 



9-11-805 FAMILY LAW 184 

the Courts under this subchapter that provides a full explanation of 

the terms and conditions of a covenant marriage; and 

(3)(A) The signature of both parties witnessed by a notary; and 

(B) If one (1) of the parties is a minor, or both are minors, the 
written consent or authorization of those persons required under this 
chapter to consent to or authorize the marriage of minors. 

(b) The declaration shall consist of two (2) separate documents: 

(1) The recitation as set out in subdivision (a)(1) of this section; and 

(2) The affidavit with the attestation either included within or 
attached to the document. 

(c) The recitation, affidavit, and attestation shall be filed as provided 
in§ 9-ll-803(b). 

History. Acts 2001, No. 1486, § 5. 

9-11-805. Form of affidavit. 

The following is the suggested form of the affidavit that may be used 
by the parties, notary, and counselor: 

"STATE OF ARKANSAS 

COUNTY OF 

BE IT KNOWN THAT on this.... day of , ...., before me the 

undersigned notary, personally came and appeared: 

and 

who after being duly sworn by me, a notary, deposed and stated that: 

Affiants acknowledge that they have received premarital counseling 
from a priest, minister, rabbi, clerk of the Religious Society of Friends, 
any clergyman of any religious sect, or a professional marriage coun- 
selor, which marriage counseling included: 

A discussion of the seriousness of covenant marriage; 

Communication of the fact that a covenant marriage is a commitment 
for life; 

The obligation of a covenant marriage to take reasonable efforts to 
preserve the marriage if marital difficulties arise; and 

That affiants both read the pamphlet entitled "Covenant Marriage 
Act" developed and promulgated by the Administrative Office of the 
Courts, which provides a full explanation of a covenant marriage, 
including the obligation to seek marital counseling in times of marital 
difficulties and the exclusive grounds for legally terminating a covenant 
marriage by divorce or divorce after a judgment of separation from bed 
or board. 



(Name of prospective spouse) 
(Name of prospective spouse) 



185 MARRIAGE 9-11-807 

SUBSCRIBED AND SWORN TO BEFORE ME THIS DAY OF 



NOTARY PUBLIC 

ATTESTATION 



The undersigned attests that the affiants did receive counseling from 
me as to the nature and purpose of marriage, which included a 
discussion of the seriousness of covenant marriage, communication of 
the fact that a covenant marriage is for life, and the obligation of a 
covenant marriage to take reasonable efforts to preserve the marriage 
if marital difficulties arise. 



Counselor" 
History. Acts 2001, No. 1486, § 5. 

9-11-806. Other applicable rules. 

A covenant marriage shall be governed by all of the provisions of this 
title, except as otherwise specifically provided in this subchapter. 

History. Acts 2001, No. 1486, § 5. 

9-11-807. Applicability to already married couples. 

(a) A married couple, upon submission of a copy of its marriage 
certificate, which need not be certified, may execute a declaration of 
intent to designate its marriage as a covenant marriage to be governed 
by this subchapter. 

(b) This declaration of intent in the form and containing the contents 
required by subsection (c) of this section must be filed with the officer 
who issues marriage licenses in the county in which the couple is 
domiciled. 

(c)(1) A declaration of intent to redesignate a marriage as a covenant 
marriage shall contain all of the following: 

(A) A recitation by the parties as set out in § 9-11-804; 

(B) An affidavit by the parties as set out in § 9-11-805 that they 
have discussed their intent to designate their marriage as a covenant 
marriage with an authorized counselor that included a discussion of 
the obligation to seek marital counseling in times of marital difficul- 
ties and the exclusive grounds for legally terminating a covenant 
marriage by divorce; 

(C) An attestation signed by the counselor and attached to the 
parties' affidavit acknowledging that the counselor provided to the 
parties the informational pamphlet developed and promulgated by 
the Administrative Office of the Courts under this subchapter that 



9-11-808 FAMILY LAW 186 

provides a full explanation of the terms and conditions of a covenant 
marriage; and 

(D) The signature of both parties witnessed by a notary. 
(2)(A) The declaration shall contain two (2) separate documents: 

(i) The recitation; and 

(ii) The affidavit with the attestation either included within or 
attached to the document. 

(B) The recitation, affidavit, and attestation shall be filed as 
provided in subsection (b) of this section. 

History. Acts 2001, No. 1486, § 5. This subchapter became effective Au- 

A.C.R.C. Notes. As enacted, subsection gust 13, 2001. 
(a) began "On or after the effective date of 
this subchapter." 

9-11-808. Divorce or separation. 

(a) Notwithstanding any other law to the contrary and subsequent to 
the parties' obtaining authorized counseling, a spouse to a covenant 
marriage may obtain a judgment of divorce only upon proof of any of the 
following: 

(1) The other spouse has committed adultery; 

(2) The other spouse has committed a felony or other infamous crime; 

(3) The other spouse has physically or sexually abused the spouse 
seeking the divorce or a child of one (1) of the spouses; 

(4) The spouses have been living separate and apart continuously 
without reconciliation for a period of two (2) years; or 

(5)(A) The spouses have been living separate and apart continuously 
without reconciliation for a period of two (2) years from the date the 
judgment of judicial separation was signed; or 

(B)(i) If there is a minor child or children of the marriage, the 
spouses have been living separate and apart continuously without 
reconciliation for a period of two (2) years and six (6) months from the 
date the judgment of judicial separation was signed. 

(ii) However, if abuse of a child of the marriage or a child of one (1) 
of the spouses is the basis for which the judgment of judicial 
separation was obtained, then a judgment of divorce may be obtained 
if the spouses have been living separate and apart continuously 
without reconciliation for a period of one ( 1 ) year from the date the 
judgment of judicial separation was signed. 

(b) Notwithstanding any other law to the contrary and subsequent to 
the parties' obtaining authorized counseling, a spouse to a covenant 
marriage may obtain a judgment of judicial separation only upon proof 
of any of the following: 

(1) The other spouse has committed adultery; 

(2) The other spouse has committed a felony and has been sentenced 
to death or imprisonment; 

(3) The other spouse has physically or sexually abused the spouse 
seeking the legal separation or divorce or a child of one ( 1 ) of the 
spouses; 



187 MARRIAGE 9-11-809 

(4) The spouses have been living separate and apart continuously 
without reconciliation for a period of two (2) years; or 

(5) The other spouse shall: 

(A) Be addicted to habitual drunkenness for one (1) year; 

(B) Be guilty of such cruel and barbarous treatment as to endanger 
the life of the other; or 

(C) Offer such indignities to the person of the other as shall render 
his or her condition intolerable. 

History. Acts 2001, No. 1486, § 5. 

RESEARCH REFERENCES 

U. Ark. Little Rock L. Rev. Survey of sembly, Family Law, 24 U. Ark. Little 
Legislation, 2001 Arkansas General As- Rock L. Rev. 483. 

9-11-809. Suit against spouse — Separation. 

(a) Unless judicially separated, spouses in a covenant marriage may 
not sue each other except for causes of action: 

(1) Pertaining to contracts; 

(2) For restitution of separate property; 

(3) For judicial separation in covenant marriages; 

(4) For divorce or for declaration of nullity of the marriage; and 

(5) For causes of action pertaining to spousal support or the support 
or custody of a child while the spouses are living separate and apart, 
although not judicially separated. 

(b)(1) Any court that is competent to preside over divorce proceed- 
ings has jurisdiction of an action for judicial separation or divorce in a 
covenant marriage if: 

(A) One (1) or both of the spouses are domiciled in this state and 
the ground for judicial separation or divorce in a covenant marriage 
was committed or occurred in this state or while the matrimonial 
domicile was in this state; or 

(B) The ground therefor occurred elsewhere while either or both of 
the spouses were domiciled elsewhere, provided the person obtaining 
the judicial separation was domiciled in this state prior to the time 
the cause of action accrued and is domiciled in this state at the time 
the action is filed. 

(2) An action for a judicial separation in a covenant marriage shall be 
brought in a county where either party is domiciled, or in the county of 
the last matrimonial domicile. 

(3) The venue provided in this section may not be waived, and a 
judgment of separation rendered by a court of improper venue is an 
absolute nullity. 

(c) Judgments on the pleadings and summary judgments shall not be 
granted in any action for judicial separation in a covenant marriage. 

(d) In a proceeding for a judicial separation in a covenant marriage 
or thereafter, a court may award a spouse all incidental relief afforded 
in a proceeding for divorce, including, but not limited to, spousal 



9-11-810 FAMILY LAW 188 

support, claims for contributions to education, child custody, visitation 
rights, child support, injunctive relief, and possession and use of a 
family residence or joint property. 

History. Acts 2001, No. 1486, § 5. 

9-11-810. Effects of separation. 

(a) Judicial separation in a covenant marriage does not dissolve the 
bond of matrimony since the separated husband and wife are not at 
liberty to marry again, but it puts an end to their conjugal cohabitation 
and to the common concerns that existed between them. 

(b) Spouses who are judicially separated in a covenant marriage 
shall retain that status until either reconciliation or divorce. 

History. Acts 2001, No. 1486, § 5. 

9-11-811. Informational pamphlet. 

(a) The Administrative Office of the Courts shall promulgate an 
informational pamphlet, entitled "Covenant Marriage Act of 2001", 
which shall outline in sufficient detail the consequences of entering into 
a covenant marriage. 

(b) The informational pamphlet shall be made available to any 
counselor who provides authorized counseling as provided for by this 
subchapter. 

History. Acts 2001, No. 1486, § 5. 

CHAPTER 12 
DIVORCE AND ANNULMENT 



subchapter. 

1. General Provisions. 

2. Annulment. 

3. Actions for Divorce or Alimony. 

Subchapter 1 — General Provisions 

section. dissolution of prior mar- 

9-12-101. Subsequent marriage before riage prohibited. 

9-12-101. Subsequent marriage before dissolution of prior mar- 
riage prohibited. 

No subsequent or second marriage shall be contracted by any person 
during the lifetime of any former husband or wife of the person unless 
the marriage with the former husband or wife has been dissolved for 
some one (1) of the causes set forth in the law concerning divorces by a 
court of competent authority 



189 



DIVORCE AND ANNULMENT 



9-12-101 



History. Rev. Stat., ch. 94, § 6; C. & M. 
Dig., § 7042; Pope's Dig., § 9022; A.S.A. 
1947, § 55-108. 



RESEARCH REFERENCES 



Ark. L. Rev. The Effect of Void and 
Voidable Marriages in Arkansas, 10 Ark. 
L. Rev. 188. 



CASE NOTES 



Void Marriage. 

A marriage in violation of this section is 
void and no decree is necessary to avoid it. 
Goset v. Goset, 112 Ark. 47, 164 S.W. 759 
(1914). 

A bigamous marriage is void though one 
of the parties entered into it in good faith. 
Evatt v. Miller, 114 Ark. 84, 169 S.W. 817 
(1914). 

This section does not apply to void mar- 
riages and where wife was married prior 



to the granting of divorce from former 
husband, court had jurisdiction to annul 
the marriage. Bramble v. Kemper, 227 
Ark. 186, 297 S.W.2d 104 (1957). 

A subsequent marriage before dissolu- 
tion of a prior marriage is void. Acuna v. 
Sullivan, 765 F. Supp. 510 (E.D. Ark. 
1991). 

Cited: Smiley v. Smiley, 247 Ark. 933, 
448 S.W.2d 642 (1970); Clark v. Clark, 19 
Ark. App. 280, 719 S.W.2d 712 (1986). 



Subchapter 2 — Annulment 



SECTION. 

9-12-201. Grounds. 
9-12-202. Proceedings for annulment 
be in equity — Venue. 



to 



RESEARCH REFERENCES 



A.L.R. Prior institution of annulment 
proceedings or other attack on validity of 
one's marriage as barring or estopping one 
from entitlement to property rights as 
surviving spouse. 31 A.L.R.4th 1190. 

Homosexuality, transvestitism and 
similar sexual practices as grounds for 
annulment of marriage. 68 A.L.R.4th 
1069. 

Power of incompetent spouse's guardian 
or representative to sue for granting or 
vacation of divorce or annulment of mar- 
riage, or to make compromise or settle- 
ment in such suit. 32 A.L.R.5th 673. 

Am. Jur. 4 Am. Jur. 2d, Annulment of 
Marriage, § 1 et seq. 



Ark. L. Rev. Domestic Relations — 
Annulment for Failure to Reveal Family 
Morals, 5 Ark. L. Rev. 442. 

The Effect of Void and Voidable Mar- 
riages in Arkansas, 10 Ark. L. Rev. 188. 

The Cause of Action for Annulment of 
Marriage in Arkansas, 14 Ark. L. Rev. 85. 

C.J.S. 7A C.J.S., Atty & C, § 370. 
55 C.J.S., Marriage, § 48 et seq. 
67A C.J.S., Parent & C, § 80. 
90 C.J.S., Trusts, § 419. 
95 C.J.S., Wills, § 582. 



9-12-201 



FAMILY LAW 



190 



9-12-201. Grounds. 

When either of the parties to a marriage is incapable from want of age 
or understanding of consenting to any marriage, or is incapable of 
entering into the marriage state due to physical causes, or when the 
consent of either party shall have been obtained by force or fraud, the 
marriage shall be void from the time its nullity shall be declared by a 
court of competent jurisdiction. 

History. Rev. Stat., ch. 94, § 5; C. & M. 
Dig., § 7041; Pope's Dig., § 9021; A.S.A. 
1947, § 55-106. 

RESEARCH REFERENCES 

U. Ark. Little Rock L.J. Survey, Fam- 
ily Law, 13 U. Ark. Little Rock L.J. 369. 

CASE NOTES 



Analysis 

In General. 

Construction. 

Alimony. 

Attorney Fees. 

Burden of Proof. 

Conflict of Laws. 

Fraud. 

Minors. 

Nonresidents. 

Particular Grounds. 

Res Judicata. 

Time of Bringing Action. 

In General. 

A marriage may be annulled only for 
causes set up by statute. Phillips v. Phil- 
lips, 182 Ark. 206, 31 S.W.2d 134 (1930). 

Construction. 

The word "void" as used in this section 
is used in the sense that the marriage can 
be avoided. Ragan v. Cox, 210 Ark. 152, 
194 S.W.2d 681 (1946). 

The word "void" as used in this section 
means voidable. Vance v. Hinch, 222 Ark. 
494, 261 S.W.2d 412 (1953). 

The words "want of understanding" as 
used in this section are broad enough to 
include a person of unsound mind. Vance 
v. Hinch, 222 Ark. 494, 261 S.W.2d 412 
(1953). 

Alimony. 

Where a guardian sues to annul a mar- 
riage between an infant husband and in- 



fant wife, wife cannot sue guardian or 
parent for alimony. Erwin v. Erwin, 120 
Ark. 581, 180 S.W. 186 (1915). 

Attorney Fees. 

Where evidence did not sustain annul- 
ment of marriage, defendant wife was 
entitled to award of fees for her attorney 
Shatford v. Shatford, 214 Ark. 612, 217 
S.W2d 917 (1949). 

Burden of Proof. 

Burden of proof is upon husband to 
establish fraud where he files an action to 
annul marriage on the ground of fraud. 
Shatford v. Shatford, 214 Ark. 612, 217 
S.W2d 917 (1949). 

Conflict of Laws. 

The validity of a marriage must be 
determined by the law of the state where 
the marriage was contracted. Feigenbaum 
v. Feigenbaum, 210 Ark. 186, 194 S.W2d 
1012 (1946). 

Fraud. 

In action to annul marriage on the 
ground of fraud the plaintiff must estab- 
lish the fraud with the same amount of 
evidence, as is required in an action to set 
aside a deed or other written contract on 
the ground of fraud. Shatford v. Shatford, 
214 Ark. 612, 217 S.W.2d 917 (1949). 

Evidence did not justify annulment of 
marriage on the ground of false represen- 
tation. Shatford v. Shatford, 214 Ark. 612, 
217 S.W2d 917 (1949). 



191 



DIVORCE AND ANNULMENT 



9-12-202 



Minors. 

This section reaffirms public policy of 
the state to the effect that underage mar- 
riages, valid where contracted, are not 
void in Arkansas until nullified by a court 
of competent jurisdiction. State v. Graves, 
228 Ark. 378, 307 S.W.2d 545 (1957). 

The public policy of Arkansas against 
underage marriages is not such that a 
marriage, valid in the state where con- 
tracted, would be void in Arkansas. State 
v. Graves, 228 Ark. 378, 307 S.W.2d 545 
(1957). 

Nonresidents. 

An Arkansas court has jurisdiction of a 
suit by a nonresident against a nonresi- 
dent for the annulment of a marriage 
contracted between them in Arkansas. 
Feigenbaum v. Feigenbaum, 210 Ark. 186, 
194 S.W.2d 1012 (1946). 

Particular Grounds. 

Marriage induced through fear of pros- 
ecution for having seduced a girl is not 
ground for annulling the marriage. Kibler 
v. Kibler, 180 Ark. 1152, 24 S.W.2d 867 
(1930). 

A marriage may be annulled when one 
of the parties is infected with syphilis. 
Brown v. Brown, 181 Ark. 528, 27 S.W.2d 
85 (1930). 

A woman who took part in a marriage 
ceremony at a time when by reason of 
intoxication she was incapable of consent- 
ing to marriage is entitled to have the 



marriage annulled. Bickley v. Carter, 190 
Ark. 501, 79 S.W.2d 436 (1935). 

Marriage induced by misrepresentation 
as to paternity of child may be annulled on 
the ground of fraud. Shatford v. Shatford, 
214 Ark. 612, 217 S.W.2d 917 (1949). 

In son's action for an injunction prohib- 
iting his deceased father's wife from re- 
ceiving the father's pension benefits, the 
son could not challenge the validity of the 
father's marriage on appeal where the 
issue of whether the marriage should be 
set aside on the ground of undue influence 
was argued before, and decided by, the 
trial court. Hooten v. Jensen, 94 Ark. App. 
130, 227 S.W.3d 431 (2006). 

Res Judicata. 

Decision in an annulment proceeding 
brought on the ground of false represen- 
tation as to paternity of child is not res 
judicata in either a paternity or heirship 
action, as child is not a party privy to the 
annulment proceeding. Shatford v. Shat- 
ford, 214 Ark. 612, 217 S.W.2d 917 (1949). 

Time of Bringing Action. 

The marriage of an insane person is 
voidable only, and is subject to attack, 
only during the lifetime of both parties. 
Vance v. Hinch, 222 Ark. 494, 261 S.W.2d 
412 (1953). 

A state of marriage can only be dis- 
solved during the lives of the parties to the 
marriage by annulment or by divorce. 
Mabry v. Mabry, 259 Ark. 622, 535 S.W.2d 
824 (1976). 



9-12-202. Proceedings for annulment to be in equity — Venue. 

(a) The action shall be by equitable proceedings in the county where 
the complainant or complainants reside. 

(b) The process may be directed in the first instance to any county in 
the state where the defendant may then reside or be found. 

History. Pope's Dig., § 902 1A, as 
added by Acts 1947, No. 168, § 1; A.S.A. 
1947, § 55-107. 

RESEARCH REFERENCES 



Ark. L. Rev. Acts of 1947. Changes in 
Venue Laws, 1 Ark. Law Rev. 209. 



Conflict of Laws — Jurisdiction in 
Amendment, 22 Ark. L. Rev. 509. 



9-12-202 



FAMILY LAW 



192 



CASE NOTES 



Void Marriages. 

This section does not apply to void mar- 
riages and where wife was married prior 
to the granting of divorce from former 
husband, chancery court of the county 



where the void marriage was performed 
had jurisdiction to annul the marriage. 
Bramble v. Kemper, 227 Ark. 186, 297 
S.W.2d 104 (1957). 



Subchapter 3 — Actions for Divorce or Alimony 



SECTION. 

9-12-301. Grounds for divorce. 

9-12-302. Equitable proceedings. 

9-12-303. Venue — Service of process. 

9-12-304. Pleadings — Interrogatories. 

9-12-305. No judgment pro confesso. 

9-12-306. Corroboration. 

9-12-307. Matters that must be proved. 

9-12-308. Effect of collusion, consent, or 
equal guilt of parties. 

9-12-309. Maintenance and attorney's 
fees — Interest. 

9-12-310. Waiting period before rendition 
of decree. 

9-12-311. Legitimacy of children not af- 
fected. 

9-12-312. Alimony — Child support — 
Bond — Method of pay- 
ment. 

9-12-313. Enforcement of separation 
agreements and decrees of 
court. 



SECTION. 

9-12-314. 



9-12-315. 
9-12-316. 
9-12-317. 

9-12-318. 
9-12-319. 



9-12-320. 

9-12-321. 
9-12-322. 

9-12-323. 
9-12-324. 

9-12-325. 



Modification of allowance for 
alimony and maintenance 
— Child support. 

Division of property. 

Property settlements. 

Dissolution of estates by the 
entirety or survivorship. 

Restoration of name. 

Nonresident defendants — 
Warning orders — Entry of 
decree. 

Proceedings subsequent to de- 
cree — Change of venue. 

Annulment of decree of divorce. 

Divorcing parents to attend 
parenting class. 

Joint credit card accounts. 

Decree dissolving a covenant 
marriage. 

Condonation abolished. 



A.C.R.C. Notes. References to "this 
subchapter" in §§ 9-12-301 through 9-12- 
322 may not apply to § 9-12-323, which 
was enacted subsequently. 

Cross References. Decrees or dis- 
missals to be registered with State Regis- 
trar of Vital Statistics, § 20-18-502. 

Effective Dates. Acts 1891, No. 26, 
§ 2: effective on passage. 

Acts 1893, No. 102, § 2: effective on 
passage. 

Acts 1931, No. 71, in part: approved 
Feb. 26, 1931. Emergency clause pro- 
vided: "This law being necessary to create 
the uniformity in divorce laws in the 
states of the union and being necessary for 
the immediate preservation of the public 
health, peace and safety of the citizens of 
the state of Arkansas, an emergency is 
hereby declared and this law shall be in 
full force and effect from and after its 
passage." 



Acts 1937, No. 167, § 2: effective on 
passage. 

Acts 1939, No. 20, § 4: approved Jan. 
27, 1939. Emergency clause provided: "Be- 
cause it is ascertained and determined 
that it is vital to the continued foundation 
of the social structure of the State that 
laws be established for the protection of 
domestic relations, and this act being es- 
sential for the protection of public safety, 
peace and health of the State of Arkansas, 
it shall be in full force from and after its 
passage." 

Acts 1943, No. 428, § 3: became law 
without Governor's signature, Apr. 1, 
1943. Emergency clause provided: "Be- 
cause it is ascertained and determined 
that it is vital to the continued foundation 
of the social structure of the State that 
laws be established for the protection of 
domestic relations, and this act being es- 
sential for the protection of public safety, 
peace and health of the State of Arkansas, 



193 



DIVORCE AND ANNULMENT 



it shall be in full force from and after its 
passage." 

Acts 1945, No. 274, § 2: approved Mar. 
20, 1945. Emergency clause provided: 
"This act being necessary for the immedi- 
ate preservation of the public peace, 
health and safety of the state of Arkansas, 
shall take effect and be in full force from 
and after the date of its passage and 
approval." 

Acts 1947, No. 16, § 3: Jan. 31, 1947. 
Emergency clause provided: "It is hereby 
ascertained and declared by the 56th Gen- 
eral Assembly of the state of Arkansas, 
that there is a lack of uniformity in the 
construction and application of section 
4394 in cases where the divorce is granted 
to the husband, when by reason of law it 
should apply to all divorce actions, and 
that with the law in its present state, 
great confusion occurs in the restoration 
of the proper legal name to the wife in 
divorce decrees, and accordingly, an emer- 
gency is declared to exist, and this act, 
being necessary for the immediate preser- 
vation of the public peace, health and 
safety, shall take effect and be in full force 
from and after the date of its passage and 
approval." 

Acts 1947, No. 159, § 2: approved Mar. 
3, 1947. Emergency clause provided: "Be- 
cause it is ascertained and determined 
that it is vital to the continued foundation 
of the social structure of the state that 
laws be established for the protection of 
domestic relations, and this act being es- 
sential for the protection of public safety, 
peace and health of the State of Arkansas, 
it shall be in full force from and after its 
passage." 

Acts 1947, No. 340, § 3: Mar. 28, 1947. 
Emergency clause provided: "The general 
assembly of the state of Arkansas finds 
and declares that numerous injustices 
have been done because courts of equity 
within the state of Arkansas have lacked 
the power heretofore, upon dissolution- 
ment of the marital status, to dissolve 
estates in property created by the marital 
status; and that, accordingly, an emer- 
gency is hereby declared to exist, and this 
act, being necessary for the immediate 
preservation of the public peace, health 
and safety, shall take effect and be in full 
force from and after the date of its passage 
and approval." 

Acts 1953, No. 348, § 6: approved Mar. 
28, 1953. Emergency clause provided: "Be- 



cause it is ascertained and determined 
that it is vital to the continued foundation 
of the social structure of the state that 
laws be established for the protection of 
domestic relations, and this act being es- 
sential for the protection of public safety, 
peace and health of the state of Arkansas, 
it shall be in full force from and after its 
passage." 

Acts 1957, No. 36: Feb. 11, 1957. Emer- 
gency clause provided: "Because it is as- 
certained and determined that confusion 
exists by reason of various conflicting de- 
cisions, particularly in Squire v. Squire, 
186 Ark. 511, 54 S.W.2d 281, and Cassen v. 
Cassen, 211 Ark. 582, whereby many per- 
sons throughout the United States have 
been embarrassed and their marital sta- 
tus made obscure by reason of said con- 
flicting decisions; and this Act being nec- 
essary for the preservation of the public 
peace, health and safety, an emergency is 
hereby declared to exist and this Act shall 
take effect and be in full force from and 
after its passage and approval." 

Acts 1959, No. 39, § 3: Feb. 13, 1959. 
Emergency clause provided: "Whereas, 
under existing law and procedure of the 
various chancery courts of this state, the 
authority of such judges to grant divorces 
in vacation in cases where the defendant 
is a nonresident of the state of Arkansas 
and against whom a warning order has 
been published, is doubtful, and should be 
clarified so as to prevent long delays, great 
inconvenience and hardship on resident 
plaintiffs in such cases, and the immedi- 
ate passage of this act being necessary to 
correct said situation, Now, Therefore, an 
emergency is hereby declared to exist and 
this act being necessary for the immediate 
preservation of the public peace, health 
and safety, shall be in full force and effect 
from and after its passage and approval." 

Acts 1963, No. 74, § 3: Feb. 21, 1963. 
Emergency clause provided: "It is hereby 
ascertained and determined by the Gen- 
eral Assembly that it is vital to the social 
structure of this state that laws be estab- 
lished for the protection of domestic rela- 
tions and that only by the immediate 
passage of this act may this be accom- 
plished. Therefore an emergency is hereby 
declared to exist and this act being neces- 
sary for the preservation of the public 
peace, health and safety shall be in effect 
from the date of its passage and approval." 



FAMILY LAW 



194 



Acts 1963, No. 190, § 2: Mar. 8, 1963. 
Emergency clause provided: "It is hereby 
found and determined by the General As- 
sembly the present law regarding the 
venue of divorce actions is not clear, that 
such lack of clarity results in undue hard- 
ship on the people of this State, and that 
this can be corrected only by the immedi- 
ate passage of this act. Therefore, an 
emergency is hereby declared to exist and 
this act being necessary for the immediate 
preservation of the public peace, health, 
safety and welfare, shall be in effect from 
the date of its passage and approval." 

Acts 1969, No. 398, § 4: Apr. 11, 1969. 
Emergency clause provided: "It having 
been found by the General Assembly that 
in many cases plaintiffs, entitled to a 
divorce, are unable to prove by others 
matters for which a divorce should be 
granted, and unable to corroborate plain- 
tiffs own testimony, and, therefore, un- 
able to obtain a divorce which ought to be 
granted, to the harm of the plaintiff and of 
society in general, working an undue 
hardship on the parties, and so an emer- 
gency is declared to exist and this act 
being necessary to the public peace, 
health and safety, shall be in full force and 
effect from and after its passage and ap- 
proval." 

Acts 1975, No. 297, § 3: Mar. 3, 1975. 
Emergency clause provided: "It is hereby 
found and determined by the General As- 
sembly that the present law regarding the 
venue for divorce actions is unduly harsh 
and restrictive and in many instances 
works a great hardship on the people of 
this State, and that it can be corrected 
only by the immediate passage of this Act. 
Therefore, an emergency is hereby de- 
clared to exist and this Act being neces- 
sary for the immediate preservation of the 
public peace, health, safety and welfare, 
shall be in effect from the date of its 
passage and approval." 

Acts 1975, No. 457, § 3: Mar. 18, 1975. 
Emergency clause provided: "It is hereby 
found and determined by the General As- 
sembly that under present law Chancery 
Courts rendering decrees of divorce are 
authorized to dissolve estates by the en- 
tirety or survivorship held by the parties 
to the divorce and to treat such parties as 
tenants in common, but that considerable 
confusion results in such cases when the 
Court does not specifically dissolve such 
estates in the decree: that it is in the best 



interests of all parties concerned that the 
law on the subject be revised to provide 
that dissolution of estates by the entirety 
shall be automatic upon rendition of a 
final decree of divorce unless specifically 
provided otherwise in the decree; that this 
Act is designed to accomplish this purpose 
and to verify the law on the subject of 
estates by the entirety held by parties to a 
divorce proceeding, and should be given 
effect immediately. Therefore, an emer- 
gency is hereby declared to exist and this 
Act being necessary for the immediate 
preservation of the public peace, health 
and safety shall be in full force and effect 
form and after its passage and approval." 

Acts 1979, No. 705, § 7: emergency 
failed to pass. Emergency clause provided: 
"It is hereby found and determined by the 
General Assembly that in a dissenting 
opinion in the recent case of McNew v. 
McNew, 262 Ark. 567, 559 S.W.2d 155 
(1977), regarding Ark. Stat. Ann. Section 
34-1214, a justice of the Arkansas Su- 
preme Court said that 'The Arkansas law 
regarding property was enacted before the 
turn of the century and can no longer be 
defended historically or legally with any 
confidence', and that Tt clearly violates 
the Equal Protection Clauses of the Ar- 
kansas and the United States Constitu- 
tions'; that in the majority opinion in that 
same case the Court did not decide this 
issue, stating ^We will not decide constitu- 
tional issues unless their determination is 
essential to disposition of the case', and 
holding that this issue of property division 
at the time of a divorce action was not 
properly before it; that a decision holding 
that Ark. Stat. Ann. Section 34-1214 is 
unconstitutional would create chaos in all 
divorce actions then pending in Arkansas 
courts until such time as the Arkansas 
General Assembly could enact legislation 
to cover this subject; and that this Act is 
designed to correct and clarify the law on 
this subject. Therefore, an emergency is 
declared to exist and this Act being neces- 
sary for the preservation of the public 
peace, health and safety shall be in full 
force and effect from and after its passage 
and approval." Approved Apr. 2, 1979. 

Acts 1981, No. 69, § 2: Feb. 16, 1981. 
Emergency clause provided: "It is hereby 
found and determined by the General As- 
sembly that under the present law rela- 
tive to the division of marital property in 
divorce proceedings, if the court does not 



195 



DIVORCE AND ANNULMENT 



divide such property equally between the 
parties, the court is required to state in 
writing the basis and reasons for not di- 
viding the property equally; that the re- 
quirement that such basis and reasons be 
stated in writing in all such cases results 
in unreasonable delays in such proceed- 
ings and in inconvenience to the parties 
and to the courts; that this Act is designed 
to permit the court to orally state the 
basis and reasons for such division of 
property and should be given effect imme- 
diately Therefore, an emergency is hereby 
declared to exist and this Act being neces- 
sary for the immediate preservation of the 
public peace, health and safety shall be in 
full force and effect from and after its 
passage and approval." 

Acts 1981, No. 267, § 3: Mar. 2, 1981. 
Emergency clause provided: "It is hereby 
found and determined by the General As- 
sembly that in many cases in which any 
issue is contested the injured party, en- 
titled to divorce, is unable to corroborate 
the injured party's own testimony as to 
grounds for divorce, and, therefore, is un- 
able to obtain a divorce which ought to be 
granted. Therefore, an emergency is 
hereby declared to exist and this Act being 
necessary for the immediate preservation 
of the public peace, health, and safety 
shall be in full force and effect from and 
after its passage and approval." 

Acts 1981, No. 657, § 4: Mar. 23, 1981. 
Emergency clause provided: "It is hereby 
found and determined by the General As- 
sembly that the Arkansas Supreme Court, 
in the case of Webb v. Webb, 262 Ark. 461, 
557 S.W2d 878 (1977), held that an award 
of alimony in fixed installments for a 
specified period of time is improper in that 
such award is in fact a gross sum instead 
of a continuing allowance; that this Act is 
designed to specifically authorize the 
award of alimony in fixed installments for 
a specified period of time in order that 
such payments will qualify as 'periodic 
payments' within the meaning of Section 
71 (a) of the Internal Revenue Code; that 
this Act should be given effect immedi- 
ately to accomplish such purposes. There- 
fore, an emergency is hereby declared to 
exist and this Act being necessary for the 
immediate preservation of the public 
peace, health and safety shall be in full 
force and effect from and after its passage 
and approval." 



Acts 1981, No. 714, § 75: Mar. 25, 1981. 
Emergency clause provided: "It has been 
found and is declared by the General 
Assembly of Arkansas that existing law 
relating to such matters as homestead, 
dower, curtesy, statutory allowances pay- 
able from a decedent's estate, and the 
right of a surviving spouse to take against 
the will of a decedent, do not in all circum- 
stances provide for equal treatment be- 
tween the sexes, that the constitutionality 
of such existing law has been drawn into 
question by decisions of the United States 
Supreme Court and the Arkansas Su- 
preme Court, and that there is an urgent 
need to insure that the law provides 
equality in the property rights and inter- 
ests of married persons. Therefore, an 
emergency is declared to exist, and this 
act being necessary for the preservation of 
the public peace, health and safety, shall 
take effect and be in force from the date of 
its approval." 

Acts 1981, No. 798, § 4: Mar. 28, 1981. 
Emergency clause provided: "It is hereby 
found and determined by the General As- 
sembly that the federal income tax conse- 
quences of property divisions incident to 
divorce can make the after tax results 
drastically different from the value before 
taxes, of property divided between the 
spouses; that this Act is designed to pro- 
vide for the consideration of such tax 
consequences; and that this Act should be 
given effect immediately to alert all par- 
ties in divorce proceedings to the potential 
impact of federal income taxes upon prop- 
erty divisions. Therefore, an emergency is 
hereby declared to exist, and this Act 
being necessary for the immediate preser- 
vation of public peace, health and safety 
shall be in full force and effect from and 
after its passage and approval." 

Acts 1981, No. 799, § 4: Mar. 28, 1981. 
Emergency clause provided: "It is hereby 
found and determined by the General As- 
sembly that under the present Arkansas 
law, there is no provision for a 'decree of 
legal separation'; that since there is no 
such provision, paragraph (3) of subsec- 
tion (B) of Section 461 of the Civil Code as 
amended by Act 705 of 1979 actually has 
no application; that in a recent decision, 
the Arkansas Supreme Court carefully 
distinguished the proof requirements of 
absolute divorce and divorce from bed and 
board; that this Act is designed to clarify 
paragraph (3) of subsection (B) of Section 



FAMILY LAW 



196 



461 of the Civil Code, as amended, to 
specifically make the provisions thereof 
with respect to the division of property 
applicable not only in decrees of absolute 
divorce but also to decrees of divorce from 
bed and board; that this Act should be 
given effect immediately to render the 
provisions of present property division 
law compatible with the divorce law and 
cases. Therefore, an emergency is hereby 
declared to exist and this Act being neces- 
sary for the immediate preservation of the 
public peace, health and safety shall be in 
full force and effect from and after its 
passage and approval." 

Acts 1983, No. 369, § 5: Mar. 8, 1983. 
Emergency clause provided: "It is hereby 
found and determined by the General As- 
sembly that the present law relating to 
the authority of the court with respect to 
division of corporate stock and other secu- 
rities in divorce proceedings is unclear 
and in many cases inadequate to permit 
the court to do equity in the division of 
property; that this Act is designed to per- 
mit the court to order that the securities 
be distributed to one party on the condi- 
tion that one-half of the fair market value 
of such securities would be set aside and 
distributed to the other party; that this 
Act is necessary to clarify the law in this 
respect and should be given effect imme- 
diately. Therefore, an emergency is hereby 
declared to exist and this Act being neces- 
sary for the preservation of the public 
peace, health and safety shall be in full 
force and effect from and after its passage 
and approval." 

Acts 1985, No. 989, § 6: Aug. 1, 1985. 

Acts 1987, No. 599, § 4: Apr. 4, 1987. 
Emergency clause provided: "It is hereby 
found and determined by the General As- 
sembly that there is an urgent need for 
clarification as to what fees are permitted 
to be charged for support collection 
throughout the state. Therefore, an emer- 
gency is hereby declared to exist and this 
Act being necessary for the immediate 
preservation of the public peace, health 
and safety shall be in full force and effect 
from and after its passage and approval." 

Acts 1989, No. 948, § 10: Mar. 27, 1989, 
except §§ 1, 2, and 5 effective Oct. 1, 1989. 
Emergency clause provided: "It is hereby 
found and determined by the General As- 
sembly that it is in the best interest of the 
people of the State of Arkansas that child 
support be collected in the most expedient 



manner for all children of this state; that 
new federal requirements of the Title IV-D 
program operated by the Department of 
Human Services should be extended to all 
litigants of this state enforcing collection 
of child support; and that the smooth 
transition from current requirements to 
those of this act require some provisions to 
become effective immediately upon pas- 
sage and other effective at a later date. 
Therefore, an emergency is hereby de- 
clared to exist and this act being neces- 
sary for the preservation of the public 
peace, health and safety shall be in full 
force and effect from and after its passage 
and approval with sections 1, 2 and 5 of 
this act to become effective October 1, 
1989." 

' Acts 1991, No. 131, § 5: Feb. 12, 1991. 
Emergency clause provided: "It is hereby 
ascertained and determined by the Gen- 
eral Assembly that it is vital to the social 
structure of the State that laws be estab- 
lished for the protection of domestic rela- 
tions and that only by the immediate 
passage of this act may this be accom- 
plished. Therefore, an emergency is 
hereby declared to exist and this act being 
necessary for the preservation of the pub- 
lic peace, health, and safety, shall be in 
effect from the date of its passage and 
approval." 

Acts 1999, No. 1491, § 5: Apr. 15, 1999. 
Emergency clause provided: "It is hereby 
found and determined by the Eighty-sec- 
ond General Assembly that present law 
does not address the circumstances where 
subsequent to an Arkansas divorce both 
parties leave the county of jurisdiction 
resulting in custody concerns being under 
the jurisdiction of the chancery court of 
the county where neither party resides; 
that this act addresses that problem and 
allows for the transfer of the case to the 
county of residence of either party; and 
that this act should, therefore, go into 
effect as soon as possible. Therefore, an 
emergency is declared to exist and this act 
being immediately necessary for the pres- 
ervation of the public peace, health and 
safety shall become effective on the date of 
its approval by the Governor. If the bill is 
neither approved nor vetoed by the Gov- 
ernor, it shall become effective on the 
expiration of the period of time during 
which the Governor may veto the bill. If 
the bill is vetoed by the Governor and the 
veto is overridden, it shall become effec- 



197 



DIVORCE AND ANNULMENT 



tive on the date the last house overrides 
the veto." 



RESEARCH REFERENCES 



A.L.R. License or professional degree of 
spouse as marital property for purposes of 
alimony, support or property settlement. 4 
A.L.R.4th 1294. 

Laches or acquiescence as defense, so as 
to bar recovery of arrearages of perma- 
nent alimony or child support. 5 A.L.R.4th 
1015. 

Receiver for marital or community 
property. 15 A.L.R.4th 224. 

Vacating or setting aside divorce decree 
after remarriage of party. 17 A.L.R.4th 
1153. 

Children's needs considered in making 
property division. 19 A.L.R.4th 239. 

Escalation clause in divorce decree re- 
lating to alimony and child support. 19 
A.L.R.4th 830. 

Spouse's liability after divorce for com- 
munity debt contracted by other spouse 
during marriage. 20 A.L.R.4th 211. 

Appreciation in value of separate prop- 
erty during marriage without contribu- 
tion by either spouse as separate or com- 
munity property. 24 A.L.R.4th 453. 

Excessiveness or adequacy of amount of 
money awarded as separate maintenance, 
alimony, or support for spouse without 
absolute divorce. 26 A.L.R.4th 1190. 

Excessiveness or adequacy of money 
awarded as temporary alimony. 26 
A.L.R.4th 1218. 

Amount of alimony and child support 
combined. 27 A.L.R.4th 1038. 

Amount of permanent alimony. 28 
A.L.R.4th 786. 

Automobiles: excessiveness or adequacy 
of award as permanent alimony. 28 
A.L.R.4th 786. 

Effect of death of party to divorce pro- 
ceeding pending appeal or time allowed 
for appeal. 33 A.L.R.4th 47. 

Valuation date for property being dis- 
tributed pursuant to divorce. 34 A.L.R.4th 
63. 

Court's authority to award temporary 
alimony or suit money where existence of 
valid marriage is contested. 34 A.L.R.4th 
814. 

Reconciliation of spouses affecting de- 
cree. 36 A.L.R.4th 502. 

Spouse's right to discovery of closely 
held corporation records during divorce 



proceeding. 38 A.L.R.4th 145. 

Dissipation of assets prior to divorce as 
factor in determining property division. 
41 A.L.R.4th 416. 

Equitable distribution doctrine. 41 
A.L.R.4th 481. 

Treatment or valuation of stock options 
for purposes of dividing marital property. 
46 A.L.R.4th 640; 46 A.L.R.4th 689. 

Divorced or separated spouse's living 
with member of opposite sex as affecting 
other spouse's obligation of alimony or 
support under separation agreement. 47 
A.L.R.4th 38. 

Excessiveness or adequacy of combined 
property division and spousal support 
awards. 55 A.L.R.4th 14. 

Propriety of property distribution leav- 
ing both parties with substantial owner- 
ship interest in same business. 56 
A.L.R.4th 862. 

Divorce order requiring that party not 
compete with former marital business. 59 
A.L.R.4th 102. 

Treatment and method of valuation of 
future interest in real estate or trust prop- 
erty not realized during marriage. 62 
A.L.R.4th 107. 

Prejudgment interest awards in divorce 
cases. 62 A.L.R.4th 156. 

Power to modify spousal support award 
for a limited term, issued in conjunction 
with divorce, so as to extend the term or 
make the award permanent. 62 A.L.R.4th 
180. 

Voluntary contributions to child's edu- 
cation expenses as factor justifying modi- 
fication of spousal support award. 63 
A.L.R.4th 436. 

Lis pendens as applicable to suit for 
separation or dissolution of marriage. 65 
A.L.R.4th 522. 

Withholding visitation rights for failure 
to make alimony or support payments. 65 
A.L.R.4th 1155. 

Enforceability of separation agreement 
affecting property rights upon death of 
one party prior to final judgement of di- 
vorce. 67 A.L.R.4th 237. 

Effect of court order prohibiting sale or 
transfer of property on party's right to 
change beneficiary of insurance policy. 68 
A.L.R.4th 929. 



FAMILY LAW 



198 



Attributing undisclosed income to par- 
ent or spouse for purposes of making child 
or spousal support award. 70 A.L.R.4th 
173. 

Propriety of using contempt proceed- 
ings to enforce property settlement award 
or order. 72 A.L.R.4th 298. 

Goodwill in medical or dental practice 
as property subject to distribution on dis- 
solution of marriage. 76 A.L.R.4th 102. 

Goodwill in accounting practice as prop- 
erty subject to distribution on dissolution 
of marriage. 77 A.L.R.4th 645. 

Accrued vacation, holiday time and sick 
leave as marital or separate property. 78 
A.L.R.4th 1107. 

Obligor spouse's death as affecting ali- 
mony. 79 A.L.R.4th 10. 

What constitutes order made pursuant 
to state domestic law for purposes of 
qualified domestic relations order exemp- 
tion to antialienation provision of ERISA. 
79A.L.R.4th 1081. 

Court's authority to institute or in- 
crease spousal support award after dis- 
charge of prior property award in bank- 
ruptcy. 87 A.L.R.4th 353. 

Spouse's right to order that other pay 
expert witness fees. 4 A.L.R.5th 403. 

Joinder of tort action between spouses 
with proceeding for dissolution of mar- 
riage. 4 A.L.R.5th 972. 

Consideration of tax consequences of 
capital gain or loss in distribution of mari- 
tal property. 9 A.L.R.5th 568. 

Award of interest on deferred install- 
ment payments of marital asset distribu- 
tion. 10 A.L.R.5th 191. 

Spouse's right to set off debt owed by 
other spouse against accrued spousal or 
child support payments. 11 A.L.R.5th 259. 

Consideration of obligated spouse's 
earnings from overtime or "second job" 
held in addition to regular full-time em- 
ployment in fixing alimony or child sup- 
port awards. 17 A.L.R.5th 143. 

Treatment of depreciation expenses 
claimed for tax or accounting purposes in 
determining ability to pay child or spousal 
support. 28 A.L.R.5th 46. 

Worker's compensation benefits as 
marital property subject to distribution. 
30 A.L.R.5th 139. 

Full faith and credit "last-in-time" rule 
as applicable to sister state divorce or 
custody judgement which is inconsistent 
with the forum state's earlier judgement. 
36 A.L.R.5th 527. 



Validity and construction of provision 
for arbitration of disputes as to alimony or 
support payments, or child visitation or 
custody matters. 38 A.L.R.5th 69. 

Contingent fee contracts as marital 
property subject to distribution. 44 
A.L.R.5th 671. 

Family court jurisidiction to hear con- 
tract claims. 46 A.L.R.5th 73. 

Alimony as affected by recipient 
spouse's remarriage, in absence of control- 
ling statute. 47 A.L.R.5th 129. 

Validity, construction, and application 
of provision in separation agreement af- 
fecting distribution or payment of attor- 
neys' fees. 47 A.L.R.5th 207. 

Lump-sum alimony award. 49 
A.L.R.5th 441. 

Alimony or child-support awards as 
subject to attorney's liens. 49 A.L.R.5th 
595. 

Enforcement of claim for alimony or for 
attorneys' fees or costs incurred in connec- 
tion therewith, against exemptions. 52 
A.L.R.5th 221. 

Assumption or denial of jurisdiction of 
action involving matrimonial disputes 
based on forum non conveniens. 55 
A.L.R.5th 647. 

Consideration of obligor spouse's or par- 
ents' personal-injury recovery or settle- 
ment in fixing alimony or child-support. 
59 A.L.R.5th 489. 

Effect of same-sex relationship on right 
to spousal support. 73 A.L.R.5th 599. 

Am. Jur. 24 Am. Jur 2d, Divorce & S., 
§ 1 et seq. 

41 Am. Jur. 2d, Husb. & W, § 387 et 
seq. 

Ark. L. Notes. Laurence, Protecting 
Alimony: Steps to Take in Contemplation 
of Default under a Divorce Decree, 1985 
Ark. L. Notes 57. 

Ark. L. Rev. Defenses to Divorce Ac- 
tions — Excluding Jurisdiction, 13 Ark. L. 
Rev. 314. 

The Arkansas Divorce — Do We Have 
Problems, 23 Ark. L. Rev. 601. 

The Uniform Marriage and Divorce Act: 
Analysis for Arkansas, 28 Ark. L. Rev. 
175. 

Leflar, Conflict of Laws: Arkansas, 
1978-82, 36 Ark. L. Rev. 191. 

Killenbeck, Nothing That We Can Do? 
Or, Much Ado About Nothing? Some 
Thoughts on Bates v. Bates, Equity, and 
Domestic Abuse in Arkansas, 43 Ark. L. 
Rev. 725. 



199 DIVORCE AND ANNULMENT 9-12-301 

C.J.S. 2 C.J.S., Adoption, § 65. Arkansas Law Survey, Irving, Family 

27A C.J.S., Divorce, §§ 1-269. Law, 9 U. Ark. Little Rock L.J. 173. 

27B C.J.S., Divorce, §§ 270-548. Sullivan, The Need for a Business or 

27C C.J.S., Divorce, §§ 549-end. Payroll Records Affidavit for Use in Child 

28 C.J.S., Dower, § 54. Support Matters, 11 U. Ark. Little Rock 

41 C.J.S., Husb. & W., § 182, § 220 et L.J 651. 

S6 ?; a i x **i t> i t x o * Survey, Family Law, 12 U. Ark. Little 

U. Ark Little Rock L.J. Survey of Rock L j 631 

Arkansas Law: family Law, 4 U. Ark. 

Little Rock L.J. 213. 

CASE NOTES 

Cited: Deal v. Deal, 212 Ark. 958, 208 Womack, 247 Ark. 1130, 449 S.W.2d 399 

S.W.2d 782 (1948); Jackson v. Bowman, (1970); Hughes v. Hughes, 251 Ark. 63, 

226 Ark. 753, 294 S.W.2d 344 (1956); 471 S.W.2d 355 (1971); Lovett v. Lovett, 

Nicklev.Nickle,228Ark. 258, 306 S.W.2d 25 4 Ark. 349, 493 S.W.2d 435 (1973); 

855 (1957); Coates v. Coates, 238 Ark. 1, Dunn v. Dunn, 255 Ark. 764, 503 S.W.2d 

377 S.W.2d 824 (1964); Holt v. Taylor, 242 168 M973) 
Ark. 292, 413 S.W.2d 52 (1967); Womack v. 



9-12-301. Grounds for divorce. 

(a) A plaintiff who seeks to dissolve and set aside a covenant 
marriage shall state in his or her petition for divorce that he or she is 
seeking to dissolve a covenant marriage as authorized under the 
Covenant Marriage Act of 2001, § 9-11-801 et seq. 

(b) The circuit court shall have power to dissolve and set aside a 
marriage contract, not only from bed and board, but from the bonds of 
matrimony, for the following causes: 

(1) When either party, at the time of the contract, was and still is 
impotent; 

(2) When either party shall be convicted of a felony or other infamous 
crime; 

(3) When either party shall: 

(A) Be addicted to habitual drunkenness for one (1) year; 

(B) Be guilty of such cruel and barbarous treatment as to endanger 
the life of the other; or 

(C) Offer such indignities to the person of the other as shall render 
his or her condition intolerable; 

(4) When either party shall have committed adultery subsequent to 
the marriage; 

(5) When husband and wife have lived separate and apart from each 
other for eighteen (18) continuous months without cohabitation, the 
court shall grant an absolute decree of divorce at the suit of either party, 
whether the separation was the voluntary act of one (1) party or by the 
mutual consent of both parties or due to the fault of either party or both 
parties; 

(6)(A) In all cases in which a husband and wife have lived separate 
and apart for three (3) consecutive years without cohabitation by 



9-12-301 FAMILY LAW 200 

reason of the incurable insanity of one (1) of them, the court shall 
grant a decree of absolute divorce upon the petition of the sane spouse 
if the proof shows that the insane spouse has been committed to an 
institution for the care and treatment of the insane for three (3) or 
more years prior to the filing of the suit, has been adjudged to be of 
unsound mind by a court of competent jurisdiction, and has not been 
discharged from such adjudication by the court and the proof of 
insanity is supported by the evidence of two (2) reputable physicians 
familiar with the mental condition of the spouse, one (1) of whom 
shall be a regularly practicing physician in the community wherein 
the spouse resided, and when the insane spouse has been confined in 
an institution for the care and treatment of the insane, that the proof 
in the case is supported by the evidence of the superintendent or one 
(1) of the physicians of the institution wherein the insane spouse has 
been confined. 

(B)(i) In all decrees granted under this subdivision (b)(6), the court 
shall require the plaintiff to provide for the care and maintenance of 
the insane defendant so long as he or she may live. 

(ii) The trial court will retain jurisdiction of the parties and the 
cause from term to term for the purpose of making such further 
orders as equity may require to enforce the provisions of the decree 
requiring the plaintiff to furnish funds for such care and mainte- 
nance. 

(C)(i) Service of process upon an insane spouse shall be had by 
service of process upon the duly appointed, qualified, and acting 
guardian of the insane spouse or upon a duly appointed guardian ad 
litem for the insane spouse, and when the insane spouse is confined 
in an institution for the care of the insane, upon the superintendent 
or physician in charge of the institution wherein the insane spouse is 
at the time confined. 

(ii) However, when the insane spouse is not confined in an insti- 
tution, service of process upon the duly appointed, qualified, and 
acting guardian of the insane spouse or duly appointed guardian ad 
litem and thereafter personal service or constructive service on an 
insane defendant by publication of warning order for four (4) weeks 
shall be sufficient; and 

(7) When either spouse legally obligated to support the other, and 
having the ability to provide the other with the common necessaries of 
life, willfully fails to do so. 

History. Civil Code, § 464; Acts 1873, 1202; Acts 1991, No. 131, §§ 1, 2; 2005, 

No. 88, § 1[464], p. 213; C. & M. Dig., No. 1890, § 1. 

§ 3500; Acts 1937, No. 167, § 1; Pope's A.C.R.C. Notes. Acts 2005, No. 1890, 

Dig., § 4381; Acts 1939, No. 20, §§ 1, 2; § 3, provided: "This act shall apply to all 

1943, No. 428, § 1; 1947, No. 159, § 1; petitions for divorce filed on or after the 

1953, No. 161, § 1; 1953, No. 348, § 2; effective date of this act." 

1963, No. 74, § 1; 1981, No. 633, § 5; Acts 2005, No. 1890 became effective 

1985, No. 360, § 1; A.S.A. 1947, § 34- August 12, 2005. 



201 



DIVORCE AND ANNULMENT 



9-12-301 



RESEARCH REFERENCES 



A.L.R. Homosexuality as ground for di- 
vorce. 96 A.L.R.5th 83. 

Ark. L. Rev. Mutual Misconduct in 
Arkansas Divorces, 3 Ark. L. Rev. 132. 

Mental Cruelty as Grounds for Divorce, 
5 Ark. L. Rev. 419. 

Case Note, Roark v. Roark: An Expan- 



sion of the Application of Estoppel to Pro- 
hibit the Collection of Child Support Ar- 
rearages, 45 Ark. L. Rev. 631. 

U. Ark. Little Rock L.J. Survey — 
Family Law, 14 U. Ark. Little Rock L.J. 
799. 



CASE NOTES 



Analysis 

Constitutionality. 

In General. 

Adultery. 

Appeals. 

Attorney's Fees. 

Chancery Court. 

Comparative Fault. 

Condonation. 

Cruelty. 

Divorce from Bed and Board. 

Foreign Decree. 

Habitual Drunkenness. 

Indignities. 

Insanity. 

Nonsupport. 

Pleadings. 

Proof. 

— Admissibility of Evidence. 

— Burden of Proof. 

— Corroboration . 

Res Judicata. 

Separation. 

— In General. 

— Cohabitation. 

— Evidence. 

—Mutuality. 

— Time Period. 

Constitutionality. 

The act amending this statute so as to 
allow divorce after separation for three 
consecutive years was legally passed and 
is retroactive. White v. White, 196 Ark. 29, 
116 S.W2d 616 (1938). 

The act amending subdivision (b)(5) of 
this section so as to require that the 
husband and wife shall have lived sepa- 
rate and apart for three consecutive years 
(now 18 months) without cohabitation 
was not beyond the power of the legisla- 
ture to enact. Jones v. Jones, 199 Ark. 
1000, 137 S.W2d 238 (1940) (decision 
prior to the 1991 amendments). 



Act abolishing recrimination as a de- 
fense against three-year separation is not 
unconstitutional as impinging upon eq- 
uity jurisdiction, since the court of equity 
has the right to grant divorces on grounds 
and conditions prescribed by the legisla- 
ture. Young v. Young, 207 Ark. 36, 178 
S.W2d 994 (1944). 

In General. 

Where it appears that conditions be- 
tween a husband and wife have become 
unendurable without any hope of amelio- 
ration and a preponderance of the evi- 
dence shows that the husband by his 
conduct is chiefly responsible, the wife is 
entitled to a divorce from the bonds of 
matrimony. Lemaster v. Lemaster, 158 
Ark. 206, 249 S.W 589 (1923). 

Divorce is a statutory matter and the 
legislature has a right to establish the 
grounds and conditions of divorce. Young 
v. Young, 207 Ark. 36, 178 S.W2d 994 
(1944). 

Adultery. 

Where a husband sues his wife upon the 
ground of adultery, the alleged adultery 
cannot be proved by evidence tending to 
show that she had a general reputation for 
unchastity. Poe v. Poe, 93 Ark. 426, 124 
S.W. 1029 (1910). 

The charge of adultery may be suffi- 
ciently proved by evidence leading to an 
inference of guilt. While the circum- 
stances need not be such that an inference 
of guilt is the only possible conclusion that 
can be drawn therefrom, the facts must be 
such as to lead a just and reasonable man 
to the conclusion of guilt; and they are not 
sufficient if they merely justify a suspicion 
of guilt in the absence of other incriminat- 
ing circumstances. Leonard v. Leonard, 
101 Ark. 522, 142 S.W. 1133 (1912). 

Charges of adultery in a civil proceeding 
may be sufficiently proved by evidence of 



9-12-301 



FAMILY LAW 



202 



circumstances leading to an inference of 
guilt. Gibson v. Gibson. 234 Ark 954. 356 
S.W.2d 725 1 1962 . 

Appeals. 

Where divorce decree was granted un- 
der three-year I now 18-month I separation 
provision of this section, the wife's remar- 
riage during the pendency of appeal did 
not estop her from appealing the grant of 
the divorce to the husband, the failure to 
award her alimony and the settlement of 
propertv rights. Xeal v. Xeal. 258 Ark. 
338. 524 S.W.2d 460 (1975 . 

Although in divorce actions the Court of 
Appeals reviews chancery cases de novo, it 
does not disturb a chancellor's finding 
unless it is clearly against a preponder- 
ance of the evidence. Pomraning v Pom- 
raning. 13 Ark. App. 258. 682 S.W.2d 775 
'198" 

Attorney's Fees. 

The award of attorney's fees in divorce 
cases is a matter lying within the sound 
judicial discretion of the chancellor, the 
exercise of which will not be disturbed on 
appeal in the absence of its abuse. Lvtle v. 
Lytle. 266 Ark. 124. 583 S.\V.2d 1 1 1979 l 

Chancery Court. 

The chancery court has the power to 
decree separate maintenance to the wife. 
Gilliam v. Gilliam. 232 Ark. 765. 340 
S.W.2d 272 I960-. 

Chancery courts have the power to set 
aside a default divorce, even after the 
death of one of the parties, if property 
interests of the survivor are affected. Fair 
v. Fair. 232 Ark. 800. 341 S.W.2d 22 
-I960-. 

Comparative Fault. 

Where a husband sued for a divorce, 
and his wife cross-claimed for a limited 
divorce from bed and board and both the 
husband and wife were at fault, neverthe- 
less, the wife was entitled to a limited 
divorce as the party less at fault, since her 
husband was the greater and first of- 
fender. Posev v. Posev. 268 Ark. 894. 597 
S.W.2d 834 -Ct. App. 1980). 

Condonation. 

Where woman had knowledge of hus- 
band's indignities, cruelties and drunken- 
ness she was not entitled to a divorce 
because she knew the facts at the time of 
the marriage. Williamson v. Williamson. 
212 Ark. 12. 204 S.W.2d 785 1 1947 



Cruelty. 

Wife will not be granted a divorce on 
account of the cruelty of her husband in 
chastising her if she has given him serious 
provocation bv her imprudent conduct. 
Shirevv. Shirev. 87 Ark. 175. 112 S.W. 369 
(1908). 

Profane and abusive language em- 
ployed by a husband toward his wife will 
not constitute legal cruelty where it does 
not appear that her health was impaired 
or her condition rendered intolerable. 
Kientz v. Kientz. 104 Ark. 381. 149 S.W. 86 
(1912). 

Mere incompatibility of temperament or 
want of congeniality and the consequent 
quarrels causing unhappiness are not suf- 
ficient to constitute that cruelty which 
under the statute will justifv divorce. 
Kientz v. Kientz. 104 Ark. 381. 149 S.W. 86 
'1912': Disheroon v. Disheroon. 211 .Ark. 
519. 201 S.W.2d 17 (1947). 

There must be proof of specific acts of 
crueltv. Dunn v. Dunn. 114 Ark. 516. 170 
S.W. 234 (1914). 

A husband is not entitled to a divorce on 
account of his wife's cruelty toward his 
children by a former wife where it appears 
that her cruelty is not habitual nor exer- 
cised with the intent of causing suffering 
to the husband. Poe v. Poe. 149 Ark. 62. 
231 S.W. 198 1921 . 

Evidence sufficient to find spouse en- 
titled to a divorce on the ground of cruelty 
Crabtree v. Crabtree. 154 Ark. 401. 242 
S.W. 804 I 1922 . 

There were grounds for a divorce based 
on cruel and barbarous treatment where 
husband lunged at wife through the win- 
dow of her car. grabbed her neck, pushed 
her against the seat, and strangled her to 
the point that she could not breathe and 
felt as if she were choking. Rogers v. 
Rogers. 90 Ark. App. 321. 205 S.W.3d 856 
'2005 . 

Divorce from Bed and Board. 

A limited divorce is called divorce from 
bed and board in the statute; it is also 
known as divorce a mensa et thoro. Lvtle 
v. Lytle. 266 Ark. 124. 583 S.W.2d 1 1 1979). 

The grounds on which a divorce from 
bed and board may be granted are the 
same as those specified for an absolute 
divorce. Lytle v lytle, 266 Ark. 124. 583 
S.W.2d 1 '1979'; Kesterson v. Kesterson. 
21 Ark. App. 287. 731 S.W.2d 786 (1987). 

The statutory remedy of limited divorce 
• divorce mensa et thoro is available onlv 



203 



DIVORCE AND ANNULMENT 



9-12-301 



on proof of one of the statutory grounds. 
Paulson v. Paulson, 8 Ark. App. 306, 652 
S.W.2d 46 (1983). 

Foreign Decree. 

Decree for wife in husband's suit for 
divorce in another state charging habitual 
indulgence in violent and ungovernable 
fits of temper and extreme cruelty was 
held res judicata in subsequent suit in 
Arkansas charging indignities rendering 
husband's condition in life intolerable. 
Blauvelt v. Blauvelt, 199 Ark. 710, 136 
S.W.2d 201 (1940). 

Decree for wife in husband's suit for 
divorce in another state on grounds of 
ungovernable temper and extreme cruelty 
would not be res judicata in subsequent 
suit in Arkansas on ground of desertion if 
the desertion occurred after the adjudica- 
tion of former action. Blauvelt v. Blauvelt, 
199 Ark. 710, 136 S.W.2d 201 (1940). 

Former adjudication in other states 
wherein the legal right created by this 
section was not available was held not res 
judicata in husband's suit for divorce. 
Goud v. Goud, 203 Ark. 244, 156 S.W.2d 
225 (1941). 

Where husband and wife lived separate 
and apart without cohabitation for more 
than three years, husband was entitled to 
a divorce on that ground notwithstanding 
former decree in favor of wife in separate 
maintenance suit in another state. 
Brickey v. Brickey, 205 Ark. 373, 168 
S.W.2d 845 (1943). 

Divorce, granted in Arkansas, was re- 
versed, case dismissed and the parties 
remanded to state which granted a prior 
separate maintenance agreement for any 
orders for maintenance. Swanson v. Swan- 
son, 212 Ark. 439, 206 S.W.2d 169 (1947). 

Habitual Drunkenness. 

One is addicted to habitual drunken- 
ness who has a fixed habit of frequently 
getting drunk. Brown v. Brown, 38 Ark. 
324 (1881). 

To be a habitual drunkard within the 
meaning of this section, a person does not 
have to be constantly drunk nor incapaci- 
tated from doing business; it is sufficient if 
he has a fixed habit of frequently and 
repeatedly getting drunk when the oppor- 
tunity presents itself or has lost the will 
power to resist temptation in that respect. 
O'Kane v. O'Kane, 103 Ark. 382, 147 S.W. 
73 (1912). 



Evidence insufficient to show that 
spouse was a habitual drunkard. Oxford v. 
Oxford, 237 Ark. 384, 373 S.W.2d 707 
(1963). 

Indignities. 

Personal indignities contemplated by 
the statute as grounds for divorce include 
rudeness, vulgarity, unmerited reproach, 
haughtiness, contempt, contumelious- 
ness, studied neglect, intentional incivil- 
ity, injury, manifest disdain, abusive lan- 
guage, malignant ridicule and every other 
plain manifestation of settled hate, alien- 
ation, and estrangement. Rose v. Rose, 9 
Ark. 507, 1849 Ark. LEXIS 34 (1849); 
Kurtz v. Kurtz, 38 Ark. 119 (1881). 

The indignities to the person need not 
consist of personal violence. They may 
consist of unmerited reproach, rudeness, 
contempt, studied neglect, open insult, 
and many other things, habitually and 
systematically pursued, which may, ac- 
cording to the habits of the parties and 
their condition in life, be just as effectu- 
ally within the statute as personal vio- 
lence. Haley v. Haley, 44 Ark. 429 (1884). 
See also Cate v. Cate, 53 Ark. 484, 14 S.W. 
675 (1890). 

Evidence of indignities was sufficient to 
show entitlement to divorce. McGee v. 
McGee, 72 Ark. 355, 80 S.W. 579 (1904); 
Bell v. Bell, 179 Ark. 171, 14 S.W2d 551 
(1929); Bullington v. Bullington, 194 Ark. 
1155, 106 S.W2d 185 (1937); Morgan v. 
Morgan, 202 Ark. 76, 148 S.W2d 1078 
(1941); Coffey v. Coffey, 223 Ark. 607, 267 
S.W.2d 499 (1954); Brimson v. Brimson, 
227 Ark. 1045, 304 S.W2d 935 (1957); 
Forsgren v. Forsgren, 4 Ark. App. 286, 630 
S.W2d 64 (1982); Hodges v. Hodges, 27 
Ark. App. 250, 770 S.W2d 164 (1989). 

Want of congeniality and consequent 
quarrels are not sufficient to constitute 
indignities, Bell v. Bell, 105 Ark. 194, 150 
S.W. 1031 (1912). 

The remedy of absolute divorce contem- 
plated by subdivision (b)(4) of this section 
is for evils which are unavoidable and 
unendurable and which cannot be relieved 
by any exertions of the party seeking the 
aid of the courts. Meffert v. Meffert, 118 
Ark. 582, 177 S.W. 1 (1915). 

To authorize a divorce for indignities, 
conduct of the offending party must indi- 
cate settled hate and manifestation of 
alienation and estrangement and must 
have been conducted habitually through a 



9-12-301 



FAMILY LAW 



204 



period of time sufficient to show that the 
conduct arose through settled malevo- 
lence rendering it impossible to discharge 
the duties of married life and making 
one's condition in life intolerable. Preas v. 
Preas, 188 Ark. 854, 67 S.W.2d 1013 
(1934). 

Testimony held insufficient to warrant a 
divorce for indignities. Welborn v. Wel- 
born, 189 Ark. 1063, 76 S.W.2d 98 (1934); 
Fine v. Fine, 209 Ark. 754, 192 S.W.2d 212 
(1946); Price v. Price, 215 Ark. 425, 220 
S.W.2d 1021 (1949); Milne v. Milne, 266 
Ark. 900, 587 S.W.2d 229 (Ct. App. 1979); 
Copeland v. Copeland, 2 Ark. App. 55, 616 
S.W.2d 773 (1981). 

Person to whom a divorce is granted on 
the ground of indignities does not have to 
be wholly blameless. Coffey v. Coffey, 223 
Ark. 607, 267 S.W.2d 499 (1954). 

Condonation of indignities is not a de- 
fense if indignities cover a period of time 
until final separation. Coffey v. Coffey, 223 
Ark. 607, 267 S.W.2d 499 (1954). 

The statutory requirement that indigni- 
ties of the offending spouse must be such 
as to make the other's condition intoler- 
able was not satisfied. Lipscomb v. Lip- 
scomb, 226 Ark. 956, 295 S.W.2d 335 
(1956). 

Indignities may mean a number of 
things in various circumstances, but to 
constitute the grounds for divorce they 
must be constantly and persistently pur- 
sued with the object and effect of render- 
ing the situation of the opposing party 
intolerable. Gibson v. Gibson, 234 Ark. 
954, 356 S.W.2d 728 (1962). 

The charge of sexual promiscuity or 
infidelity is probably the most offensive 
charge which one spouse can make 
against the other, and it has been fre- 
quently held that to make such a charge 
without basis is an indignity entitling the 
person charged to a divorce. Relaford v. 
Relaford, 235 Ark. 325, 359 S.W.2d 801 
(1962). 

Drunken conduct may be proved along 
with other acts to establish indignities 
rendering the plaintiffs life intolerable in 
which case it is not necessary to show 
habitual drunkenness for a period of at 
least a year. Carmical v. Carmical, 246 
Ark. 1142, 441 S.W.2d 103 (1969). 

Although the scope of the indignities 
ground has undergone considerable ex- 
pansion throughout the years, it is still 
necessary that the conduct relied upon 



manifest hate, alienation, and estrange- 
ment and be constantly and systemati- 
cally pursued with the purpose and effect 
of causing an enduring alienation and 
estrangement and rendering the condition 
of the spouse intolerable. Lytle v. Lytle, 
266 Ark. 124, 583 S.W.2d 1 (1979). 

In contested cases, indignities do not 
exist absent habitual, continuous, perma- 
nent, and plain manifestation of settled 
hate, alienation, and estrangement on the 
part of one spouse, sufficient to render the 
condition of the other intolerable. Milne v. 
Milne, 266 Ark. 900, 587 S.W.2d 229 (Ct. 
App. 1979). 

Drunken conduct may be proved, along 
with other acts, to establish the general 
indignities which have rendered the 
plaintiffs marital life intolerable. Fors- 
gren v. Forsgren, 4 Ark. App. 286, 630 
S.W.2d 64 (1982). 

A divorce will be granted when one 
spouse proves that the other had offered 
such indignities to her person as to render 
her condition in life intolerable; personal 
indignities may consist of rudeness, un- 
merited reproach, contempt, studied ne- 
glect, open insult and other plain manifes- 
tations of settled hate, alienation, or 
estrangement so habitually, continuously, 
and permanently pursued as to create an 
intolerable condition. Pomraning v. Pom- 
raning, 13 Ark. App. 258, 682 S.W.2d 775 
(1985). 

The ground of indignities to the person 
must be proved by evidence of specific acts 
and conduct. Gunnell v. Gunnell, 30 Ark. 
App. 4, 780 S.W.2d 597 (1989). 

Where wife asserted indignities as 
grounds in her complaint for divorce but 
the chancellor granted the divorce on the 
grounds of "spousal abuse," the appellate 
court found no reversible error as the term 
"spousal abuse" was, under the circum- 
stances, equivalent to the recognized 
ground of cruel and barbarous treatment. 
Rogers v. Rogers, 90 Ark. App. 321, 205 
S.W.3d 856 (2005). 

Trial court did not clearly err in grant- 
ing a wife a divorce on the ground of 
general indignities pursuant to subdivi- 
sion (b)(3)(C) of this section because the 
wife showed that the husband frequently 
directed his wrath toward her in a manner 
that embarrassed, humiliated, and fright- 
ened her; that he publicly and privately 
harangued her over minor matters; that 
he acted in a dismissive and suspicious 



205 



DIVORCE AND ANNULMENT 



9-12-301 



manner by leaving the house for hours 
without explanation, making a late-night 
phone call without saying to whom he was 
speaking, and being in possession of a 
romantic card from another woman; that 
he gambled frequently; and that she could 
not account for a large portion of the 
couple's joint funds. Ransom v. Ransom, 
— Ark. App. — , — S.W.3d — , 2009 Ark. 
App. LEXIS 427 (Apr. 15, 2009). 

Insanity. 

A wife who was guardian for her insane 
husband and continued to operate his 
business as guardian was entitled to a 
third of his personal property awarded 
under a decree granted upon subdivision 
(7) of this section as it was concluded that 
that subdivision was not independent or 
free from the incidents attaching to de- 
crees based upon prior law. Chandler v. 
Chandler, 211 Ark. 332, 200 S.W.2d 508 
(1947). 

A divorce for incurable insanity granted 
to a spouse who is guardian for the insane 
requires service on the superintendent or 
physician in charge of the institution 
where the insane is confined and on a 
guardian ad litem and lack of representa- 
tion by guardian ad litem and service 
thereon renders the divorce voidable and 
subject to direct attack on the ground of 
unavoidable casualty even after the death 
of the spouse to whom the divorce was 
granted, his or her personal representa- 
tive and attorney being proper parties 
defendant in the action to vacate the di- 
vorce decree. Jackson v. Bowman, 226 
Ark. 753, 294 S.W.2d 344 (1956). 

Where a divorce was granted on 
grounds of the wife's insanity, the trial 
court's determination that the balance of 
the wife's attorney fees should be paid 
from the wife's estate because of her inde- 
pendent financial resources was reversed 
as the insane spouse is entitled to every 
reasonable protection of her interests, in- 
cluding the finest legal services that can 
be obtained for her, at her husband's ex- 
pense. Wood v. Wright, 238 Ark. 941, 386 
S.W2d 248 (1965). 

Nonsupport. 

Evidence insufficient to show that 
spouse lacked the common necessities of 
life. Saugey v. Saugey, 228 Ark. 110, 305 
S.W.2d 856 (1957); Oxford v. Oxford, 237 
Ark. 384, 373 S.W.2d 707 (1963). 



Pleadings. 

Party in a divorce proceeding prior to 
trial of the action may amend his com- 
plaint and allege the maturity of a cause 
of action since the filing of the original 
complaint. Price v. Price, 215 Ark. 425, 
220 S.W2d 1021 (1949). 

If evidence is introduced during the 
trial of a divorce proceeding showing a 
different cause of action from the one 
alleged in the complaint, the defendant 
may waive the right to object to the new 
cause of action. Price v. Price, 215 Ark. 
425, 220 S.W2d 1021 (1949). 

Where plaintiffs complaint for divorce 
alleges one ground, evidence introduced at 
trial shows a cause of divorce on another 
ground, and defendant objects to the new 
cause of action, court must dismiss the 
suit as to first ground but without preju- 
dice to the right of the plaintiff to file a 
new suit on the new ground. Price v. Price, 
215 Ark. 425, 220 S.W2d 1021 (1949). 

Where a wife amended her original di- 
vorce complaint to seek instead only sepa- 
rate maintenance, that was the only type 
of decree which could have been entered 
by the trial court; the chancellor erred in 
granting the wife a divorce from bed and 
board and erred in dividing the marital 
property under § 9-12-315. Spencer v. 
Spencer, 275 Ark. 112, 627 S.W.2d 550 
(1982). 

Proof. 

Husband was entitled to reversal of a 
divorce decree granted on the ground of 
general indignities; although the husband 
waived corroboration of grounds and 
failed to object to the sufficiency of proof of 
grounds at trial, the wife was required to 
offer sufficient, non-conclusory proof of 
grounds, which she failed to do. She of- 
fered only a general affirmative response 
to her attorney's question as to whether 
the husband had treated her in such a 
manner as to render her condition in life 
intolerable. Dee v. Dee, 99 Ark. App. 159, 
258 S.W.3d 405 (2007). 

— Admissibility of Evidence. 

Ex parte affidavit of a third person 
cannot be used as independent evidence. 
Such affidavit cannot be received as inde- 
pendent testimony or as corroboration in a 
divorce cause. Wood v. Wood, 232 Ark. 812, 
340 S.W2d 393 (1960). 



9-12-301 



FAMILY LAW 



206 



— Burden of Proof. 

Marriage contract should not be severed 
except upon clear proof of one or more of 
the grounds prescribed by this section. 
Fania v. Fania, 199 Ark. 368, 133 S.W.2d 
654 (1939). 

In an action for divorce the burden was 
on the plaintiff to show by corroborative 
evidence and a preponderance thereof, 
separation for three years (now 18 
months) without cohabitation. Ross v. 
Ross, 213 Ark. 742, 213 S.W.2d 360 (1948). 

Divorce is a creature of statute and can 
only be granted when statutory grounds 
have been proved and corroborated. Har- 
pole v. Harpole, 10 Ark. App. 298, 664 
S.W.2d 480 (1984); Pomraning v. Pomran-' 
ing, 13 Ark. App. 258, 682 S.W.2d 775 
(1985). 

Regardless of whether a divorce is con- 
tested or uncontested, the injured party 
must always prove his or her ground(s) for 
divorce as set forth in this section; in other 
words, existing statutory law does not 
allow a spouse to stipulate to or waive 
grounds for divorce. Harpole v. Harpole, 
10 Ark. App. 298, 664 S.W.2d 480 (1984); 
Rachel v. Rachel, 21 Ark. App. 77, 733 
S.W.2d 735 (1987); Hodges v. Hodges, 27 
Ark. App. 250, 770 S.W.2d 164 (1989). 

— Corroboration. 

Testimony held to be insufficiently cor- 
roborated. Ledwidge v. Ledwidge, 204 
Ark. 1032, 166 S.W.2d 267 (1942); Stim- 
mel v. Stimmel, 218 Ark. 293, 235 S.W.2d 
959 (1951). 

Allegation of separation for three years 
(now 18 months), which was admitted by 
the defendant, required corroboration. 
Allen v. Allen, 211 Ark. 335, 200 S.W.2d 
324 (1947). 

Corroborating evidence held to be suffi- 
cient. Obennoskey v. Obennoskey, 215 
Ark. 358, 220 S.W.2d 610 (1949); Pomran- 
ing v. Pomraning, 13 Ark. App. 258, 682 
S.W.2d 775 (1985). 

Corroboration is as essential to the 
granting of a divorce on the grounds of 
three-year (now 18-month) separation as 
it is in any other case, but, where it is 
plain that the divorce action is not collu- 
sive, the corroboration may be compara- 
tively slight; nonetheless, there must be 
corroboration to some substantial fact or 
circumstance independent of the testi- 
mony of the party asserting the claimed 
separation period which would lead an 



impartial and reasonable mind to believe 
that the material testimony is true. Rus- 
sell v. Russell, 275 Ark. 193, 628 S.W.2d 
315 (1982). 

Res Judicata. 

The rule of res judicata in divorce suits 
applies only when the second suit is on the 
same cause of action as the first suit. 
Narisi v. Narisi, 233 Ark. 525, 345 S.W.2d 
620 (1961). 

Separation. 

— In General. 

Divorce granted on grounds of separa- 
tion. Clarke v. Clarke, 201 Ark. 10, 143 
S.W.2d 540 (1940); Day v. Langley, 202 
Ark. 775, 152 S.W.2d 308 (1941); Goud v. 
Goud, 203 Ark. 244, 156 S.W.2d 225 
(1941); McCall v. McCall, 204 Ark. 836, 
165 S.W.2d 255 (1942); Carty v. Carty, 222 
Ark. 183, 258 S.W.2d 43 (1953); Fair v. 
Fair, 232 Ark. 800, 341 S.W.2d 22 (1960). 

Subdivision (b)(5) of this section makes 
a decree of divorce mandatory on the court 
at the suit of either party, where the 
conditions of the statute have been met, 
no matter what caused the separation. 
Brooks v. Brooks, 201 Ark. 14, 143 S.W.2d 
1098 (1940); McCormick v. McCormick, 
246 Ark. 348, 438 S.W.2d 23 (1969) (deci- 
sion prior to the 1991 amendments). 

Where husband left wife and child with 
the understanding that after he estab- 
lished himself they would join him, there 
was not a separation under subdivision 
(b)(5) of this section until they ceased to 
correspond with each other; and husband, 
praying for a divorce on that ground in 
cross-complaint to wife's suit for mainte- 
nance, had burden to show separation. 
Bockman v. Bockman, 202 Ark. 585, 151 
S.W.2d99 (1941). 

If plaintiff files suit for divorce on statu- 
tory ground of desertion for three years 
(now 18 months) the court cannot consider 
any defense by the defendant based on the 
ground of misconduct of the plaintiff, as 
this section is mandatory. Warren v. War- 
ren, 214 Ark. 379, 216 S.W.2d 398 (1949). 

Husband is entitled to divorce on 
ground of separation if separated from 
wife for three years (now 18 months), 
regardless of fault upon his part. Mohr v. 
Mohr, 214 Ark. 607, 215 S.W.2d 1020 
(1949). 

In a suit for divorce on the ground of 
three years' separation (now 18 months' 



207 



DIVORCE AND ANNULMENT 



9-12-301 



separation), the question of who was the 
injured party may only be considered in 
settlement of property rights and the 
question of alimony. Grytbak v. Grytbak, 
216 Ark. 674, 227 S.W.2d 633 (1950); Fair 
v. Fair, 232 Ark. 800, 341 S.W.2d 22 
(1960). 

In action by wife to set aside divorce 
granted on grounds of separation, allega- 
tion that separation was result of husband 
having deserted wife constituted meritori- 
ous defense even though wife admitted 
separation. Fair v. Fair, 232 Ark. 800, 341 
S.W.2d 22 (1960). 

— Cohabitation. 

Evidence established that husband and 
wife were not living separate and apart 
from each other within subdivision (b)(5) 
of this section. McClure v. McClure, 205 
Ark. 1032, 172 S.W.2d 243 (1943); Varnell 
v. Varnell, 207 Ark. 711, 182 S.W.2d 466 
(1944); Brimson v. Brimson, 227 Ark. 
1045, 304 S.W.2d 935 (1957); Oxford v. 
Oxford, 237 Ark. 384, 373 S.W.2d 707 
(1963). 

When the legislature used the word 
"cohabitation," the popular sense purport- 
ing sexual intercourse, rather than the 
literal or derivative meaning of living to- 
gether, was intended. McClure v. Mc- 
Clure, 205 Ark. 1032, 172 S.W.2d 243 
(1943); Varnell v. Varnell, 207 Ark. 711, 
182 S.W.2d 466 (1944). 

Where access to a spouse is admitted, 
marital relations will be presumed. Han- 
cock v. Hancock, 222 Ark. 823, 262 S.W2d 
881 (1953). 

— Evidence. 

Proof of alleged misconduct occurring 
more than five years before filing suit was 
admissible to show injured party. Alex- 
ander v. Alexander, 227 Ark. 938, 302 
S.W.2d 781 (1957). 

Evidence of incidents which happened 
after separation was admissible to show 
who was the injured party. Alexander v. 
Alexander, 227 Ark. 938, 302 S.W2d 781 
(1957). 

Where for all outward appearances, the 
husband and wife lived separate and 
apart, and not as husband and wife, for 
over three years (now 18 months) imme- 
diately prior to the decree of divorce, the 
wife's stay of four nights at the motel 
where the husband lived did not break the 
continuity of their separation where, dur- 



ing the stay, the parties slept apart, and 
the husband denied having sexual rela- 
tions with the wife. Santos tefano v. San- 
tostefano, 18 Ark. App. 173, 712 S.W2d 
324 (1986). 

— Mutuality. 

Subdivision (b)(5) of this section must 
be construed as though it read "when they 
have lived apart for three consecutive 
years [now 18 months]" so as to contem- 
plate an agreement or understanding that 
they will act in concert of purpose, volun- 
tarily living apart for three years, at the 
end of which period either may obtain a 
divorce from the other by alleging and 
establishing mutuality of the separation. 
White v. White, 196 Ark. 29, 116 S.W.2d 
616 (1938). 

Insane wife cannot be said to have vol- 
untarily lived apart from her husband, 
and there was no element of mutuality in 
the separation which established a ground 
for divorce under subdivision (b)(6) of this 
section. Carlson v. Carlson, 198 Ark. 231, 
128 S.W2d 242 (1939). 

Subdivision (b)(5) of this section as- 
sumes that the period of living apart with- 
out cohabitation for three years (now 18 
months) must have been the conscious act 
of both parties and the purpose is not to 
grant divorce on ground of insanity of 
either party. Serio v. Serio, 201 Ark. 11, 
143 S.W2d 1097 (1940); Wilder v. Wilder, 
207 Ark. 414, 181 S.W2d 17 (1944). 

Husband was entitled to a divorce un- 
der subdivision (b)(5) of this section where 
parties had lived apart without cohabita- 
tion for three years (now 18 months) even 
though separation was involuntary upon 
wife's part and was under his coercion. 
Brooks v. Brooks, 201 Ark. 14, 143 S.W2d 
1098 (1940). 

— Time Period. 

Supreme Court has no authority to ex- 
clude from separation contemplated by 
subdivision (b)(5) of this section period of 
time during which parties lived apart un- 
der separation decree. Jones v. Jones, 199 
Ark. 1000, 137 S.W2d 238 (1940). 

Time spent in military service may be 
included in statutory period required for 
separation. Mogensky v. Mogensky, 212 
Ark. 28, 204 S.W2d 782 (1947); Mohr v. 
Mohr, 214 Ark. 607, 215 S.W2d 1020 
(1949). 

Cited: Parrish v. Parrish, 195 Ark. 766, 
114 S.W2d 29 (1938); Smith v. Smith, 219 



9-12-302 



FAMILY LAW 



208 



Ark. 278, 242 S.W.2d 350 (1951); Oakes v. 
Oakes, 219 Ark. 363, 242 S.W.2d 128 
(1951); Bishop v. Lucas, 220 Ark. 871, 251 



S.W.2d 126 (1952); Mclntire v. Mclntire, 
270 Ark. 381, 605 S.W.2d 474 (Ct. App. 
1980). 



9-12-302. Equitable proceedings. 

The action for alimony or divorce shall be by equitable proceedings. 

History. Civil Code, § 456; C. & M. 
Dig., § 3499; Pope's Dig., § 4380; A.S.A. 
1947, § 34-1201. 

CASE NOTES 



Analysis 

In General. 
Alimony. 
Jurisdiction. 
Mental Capacity. 

In General. 

A state of marriage can only be dis- 
solved during the lives of the parties to the 
marriage by annulment or by divorce. 
Mabry v. Mabry, 259 Ark. 622, 535 S.W.2d 
824 (1976). 

Alimony. 

An independent action for alimony will 
lie. Wood v. Wood, 54 Ark. 172, 15 S.W. 459 
(1891); Shirey v. Hill, 81 Ark. 137, 98 S.W. 
731 (1906); Kientz v. Kientz, 104 Ark. 381, 
149 S.W. 86 (1912); Harmon v. Harmon, 
152 Ark. 129, 237 S.W. 1096 (1922); 
Kesterson v. Kesterson, 21 Ark. App. 287, 
731 S.W.2d 786 (1987). 

The chancery court and the Supreme 
Court on appeal had jurisdiction to award 
suit money and alimony to a wife notwith- 
standing a denial of a divorce to the hus- 
band. Gabler v. Gabler, 209 Ark. 459, 190 
S.W2d 975 (1945). 

Enforcement of a contract for alimony is 
an action for alimony and not for debt, 
even though the obligation existed by rea- 
son of agreement between the parties. 



McCue v. McCue, 210 Ark. 826, 197 
S.W2d 938 (1946). 

This section allows independent pro- 
ceeding for the division of marital prop- 
erty or alimony when neither the division 
nor alimony could have been considered in 
the divorce action. Woods v. Woods, 285 
Ark. 175, 686 S.W.2d 387 (1985). 

Income from a spendthrift trust can be 
reached by means of equitable garnish- 
ment or other means to satisfy a judgment 
for an arrearage in alimony. Council v. 
Owens, 28 Ark. App. 49, 770 S.W.2d 193 
(1989). 

Jurisdiction. 

The chancery court has exclusive juris- 
diction of all cases involving matters of 
child support; neither the municipal nor 
circuit court has concurrent jurisdiction 
with chancery court to enforce an agree- 
ment for child support. Boren v. Boren, 
318 Ark. 378, 885 S.W.2d 852 (1994). 

Mental Capacity. 

The mere fact that a man had been 
adjudged incompetent under Uniform Vet- 
erans Guardian Act and a guardian ap- 
pointed for his estate did not affect his 
capacity to marry or sue for divorce. 
Lovett v. Lovett, 254 Ark. 349, 493 S.W2d 
435(1973). 

Cited: Jackson v. Jackson, 253 Ark. 
1033, 490 S.W2d 809 (1973). 



9-12-303. Venue — Service of process. 

(a) The proceedings shall be in the county where the complainant 
resides unless the complainant is a nonresident of the State of Arkansas 
and the defendant is a resident of the state, in which case the 
proceedings shall be in the county where the defendant resides and, in 
any event, the process may be directed to any county in the state. 



209 



DIVORCE AND ANNULMENT 



9-12-303 



(b) In actions initiated by the Office of Child Support Enforcement of 
the Revenue Division of the Department of Finance and Administration 
or the Department of Human Services, proceedings may also be 
commenced in the county where the defendant resides. 

(c) When a spouse initiates an action against the other spouse for an 
absolute divorce, divorce from bed and board, or separate maintenance, 
then the venue for the initial action shall also be the venue for any of 
the three (3) named actions filed by the other spouse, regardless of the 
residency of the other spouse. 



History. Rev. Stat., ch. 51, § 5; C. & M. 
Dig., § 3502; Pope's Dig., § 4383; Acts 
1963, No. 190, § 1; 1979, No. 799, § 1; 



A.S.A. 1947, § 34-1204; Acts 1987, No. 12, 
§ 1; 1995, No. 1184, § 4. 



RESEARCH REFERENCES 



Ark. L. Rev. Clarification of Vacation 
Divorce Decrees on Constructive Service, 
13 Ark. L. Rev. 345. 

Grounds for Venue in Arkansas — A 
Survey, 25 Ark. L. Rev. 468. 

Recent Developments, Child Support 
Decrees — Uniform Enforcement of For- 



eign Judgments Act Mathews v. Mathews, 
59 Ark. L. Rev. 803. 

U. Ark. Little Rock L. Rev. Annual 
Survey of Case Law: Family Law, 29 U. 
Ark. Little Rock L. Rev. 883. 



CASE NOTES 



Analysis 

Concurrent Venue Improper. 

Cross-Complaint. 

Foreign Jurisdiction. 

Fraud. 

Residence. 

— In General. 

— Duration. 

— Evidence. 

— Separate Domicile. 

Waiver. 

Concurrent Venue Improper. 

Under subsection (c) of this section, 
where the initial action filed in Pulaski 
County was still pending on appeal when 
the second suit was filed in Saline County, 
Pulaski County was the county of proper 
venue, and the Saline County court erred 
in refusing to dismiss the action filed in 
that court. Tortorich v. Tortorich, 324 Ark. 
128, 919 S.W.2d 213 (1996). 

Cross-Complaint. 

Where wife instituted suit in a county 
other than her county of residence, and 
husband, who resided in that county, filed 
a cross-complaint without questioning the 
jurisdiction of the court on the complaint, 



court was held to have acquired jurisdic- 
tion of the parties and subject matter of 
the suit under the cross-complaint. Laird 
v. Laird, 201 Ark. 483, 145 S.W.2d 27 
(1940). 

Foreign Jurisdiction. 

The law will not presume that a hus- 
band invoked the aid of a foreign jurisdic- 
tion and obtained a divorce from the fact 
that he cohabited with another woman. 
Orsburn v. Graves, 213 Ark. 727, 210 
S.W2d 496 (1948) (decision prior to 1963 
amendment). 

Fraud. 

Where complainant was not a resident 
of the county and constructive service was 
fraudulently attempted on the defendant, 
the court had no jurisdiction of the cause, 
and could not proceed on the original suit 
in an action by the defendant to vacate the 
decree. Corney v. Corney, 79 Ark. 289, 95 
S.W 135 (1906). 

Where husband obtained a divorce de- 
cree in a county by fraudulently claiming 
that he was a resident of the county and 
also fraudulently claiming that the defen- 
dant was a nonresident of Arkansas, the 
divorce decree was an absolute nullity and 



9-12-303 



FAMILY LAW 



210 



wife was entitled to bring a suit for sup- 
port and maintenance in the county of her 
residence. Cloman v. Cloman, 229 Ark. 
447, 316 S.W.2d 817 (1958). 

Residence. 

— In General. 

This section contemplates actual resi- 
dence. Vanness v. Vanness, 128 Ark. 543, 
194 S.W. 498 (1917). 

The court was without jurisdiction 
when evidence showed that residence was 
acquired solely for the purpose of obtain- 
ing a divorce. McLaughlin v. McLaughlin, 
193 Ark. 207, 99 S.W.2d 571 (1936); Allen 
v. Allen, 211 Ark. 335, 200 S.W.2d 324 
(1947). 

The provisions of this law may be 
availed only by one who actually and in 
good faith became and was a resident of 
this state for the period of time prescribed 
by this section, but the actual residence, 
once established, is not lost by temporary 
absence from the state. Tarr v. Tarr, 207 
Ark. 622, 182 S.W.2d 348 (1944). 

In suit based on three-years' (now 18 
months') separation plaintiff did not es- 
tablish a bona fide domicile in Arkansas 
where evidence showed that in prior liti- 
gation it had been determined by courts in 
other states that he had established a 
domicile in another state. Smith v. Smith, 
219 Ark. 278, 242 S.W.2d 350 (1951). 

There must be a bona fide intention to 
make county in which suit is filed the 
residence of the complainant. Smith v. 
Smith, 219 Ark. 876, 245 S.W.2d 207 
(1952). 

Residence under this section means do- 
micile. Smith v. Smith, 219 Ark. 876, 245 
S.W.2d 207 (1952). 

Regardless of the defendant spouse's 
residence, once a plaintiff spouse has filed 
for (1) absolute divorce, (2) limited di- 
vorce, or (3) separate maintenance, the 
defendant spouse can no longer go to a 
different court (division or county) to file 
any one of the 3 named marital-related 
actions, but must file any new marital 
cause of action in the same action the 
plaintiff spouse has already initiated. Tor- 
torich v. Tortorich, 333 Ark. 15, 968 S.W.2d 
53 (1998). 

— Duration. 

No certain length of time is necessary to 
fix the residence contemplated by this 
statute, but it must be such, with the 



attendant circumstances surrounding its 
acquirement, as to manifest a bona fide 
intention of making it a fixed and perma- 
nent place of abode. McLaughlin v. 
McLaughlin, 193 Ark. 207, 99 S.W.2d 571 
(1936). 

The brevity of a wife's residence, of 
course, was relevant to her intention, but 
not controlling, in view of the fact that no 
particular length of time is required for 
the establishment of a domicile. Moon v. 
Moon, 265 Ark. 310, 578 S.W.2d 203 
(1979). 

No particular length of time is required 
for the establishment of a domicile, but 
there must be residence attended by such 
circumstances surrounding its acquire- 
ment as to manifest a bona fide intention 
of making it a fixed and permanent place 
of abode. Moon v. Moon, 265 Ark. 310, 578 
S.W.2d 203 (1979); Bachman v. Bachman, 
274 Ark. 23, 621 S.W.2d 701 (1981). 

— Evidence. 

Evidence sustained the conclusion that 
husband's move from county where he 
formerly resided to county where he insti- 
tuted suit for divorce was not made in 
good faith. Hillman v. Hillman, 200 Ark. 
340, 138S.W.2d 1051(1940). 

Evidence was held to show that plain- 
tiff, who went to another state, continued 
his residence in this state. Morgan v. Mor- 
gan, 202 Ark. 76, 148 S.W.2d 1078 (1941). 

Evidence insufficient to establish that 
complainant was bona fide resident. 
Barth v. Barth, 204 Ark. 151, 161 S.W.2d 
393(1942). 

Evidence sufficient to establish that 
complainant was resident. Feldman v. 
Feldman, 205 Ark. 544, 169 S.W.2d 866 
(1943); Cole v. Cole, 233 Ark. 210, 343 
S.W.2d 561 (1961); Puterbaugh v. Puter- 
baugh, 254 Ark. 61, 491 S.W.2d 386 
(1973). 

— Separate Domicile. 

A wife may acquire a separate domicile 
from that of her husband and at that 
domicile she may institute proceedings for 
divorce. McLaughlin v. McLaughlin, 193 
Ark. 207, 99 S.W.2d 571 (1936). 

Trial court had jurisdiction of suit for 
divorce by wife based on three years' (now 
18 months') separation, where wife left 
state for residence in sanatorium outside 
of state due to tuberculosis, since domicile 
was not changed by absence from state for 



211 DIVORCE AND ANNULMENT 9-12-306 

purpose of benefiting health. Oakes v. gis v. Hargis, 292 Ark. 487, 731 S.W.2d 198 

Oakes, 219 Ark. 363, 242 S.W.2d 128 (1987). 

(1951). Cited: Isely v. Isely, 287 Ark. 401, 700 

Waiver. SW2d 49 (1985) ' 

Venue of an action may be waived. Har- 

9-12-304. Pleadings — Interrogatories. 

(a) The pleadings are not required to be verified by affidavit. 

(b) However, either party may file interrogatories to the other in 
regard to any matter of property involved in the action that shall be 
answered on oath as interrogatories in other actions and have the same 
effect. 

History. Civil Code, § 457; C. & M. 
Dig., § 3503; Pope's Dig., § 4384; A.S.A. 
1947, § 34-1205. 

9-12-305. No judgment pro confesso. 

The statements of the complaint for a divorce shall not be taken as 
true because of the defendant's failure to answer or admission of their 
truth on the part of the defendant. 

History. Civil Code, § 458; C. & M. 
Dig., § 3504; Pope's Dig., § 4385; A.S.A. 
1947, § 34-1207. 

RESEARCH REFERENCES 

Ark. L. Rev. Clarification of Vacation 
Divorce Decrees on Constructive Service, 
13 Ark. L. Rev. 345. 

CASE NOTES 

Purpose. Fitzgerald, 227 Ark. 1063, 303 S.W.2d 577 

In a contested divorce case the corrobo- (1957); Anderson v. Anderson, 234 Ark. 

ration may be relatively slight since the 379, 352 S.W.2d 369 (1961). 

purpose of the requirement is to prevent Cited: Smiley v. Smiley, 247 Ark. 933, 

collusion. Goodlett v. Goodlett, 206 Ark. 448 S.W.2d 642 (1970); McNew v. McNew, 

1048, 178 S.W.2d 666 (1944); Fitzgerald v. 262 Ark. 567, 559 S.W.2d 155 (1977). 

9-12-306. Corroboration. 

(a) In uncontested divorce suits, corroboration of the plaintiffs 
grounds for divorce shall not be necessary or required. 

(b) In contested suits, corroboration of the injured party's grounds 
may be expressly waived in writing by the other spouse. 

(c)(1) This section does not apply to proof as to residence, which must 
be corroborated, and does not apply to proof of separation and continu- 
ity of separation without cohabitation, which must be corroborated. 



9-12-306 



FAMILY LAW 



212 



(2) In uncontested cases, proof as to residence and proof of separation 
and continuity of separation without cohabitation may be corroborated 
by either oral testimony or verified affidavit of persons other than the 
parties. 

History. Acts 1969, No. 398, § 1; 1981, 
No. 267, § 1; 1985, No. 474, § 1; A.S.A. 
1947, § 34-1207.1. 

RESEARCH REFERENCES 



U. Ark. Little Rock L.J. Legislative 
Survey, Family Law, 4 U. Ark. Little Rock 
L.J. 595. 



Arkansas Law Survey, Morgan, Family 
Law, 8 U. Ark. Little Rock L.J. 169. 



CASE NOTES 



Analysis 

Purpose. 

Contested Cases. 

Residence. 

Separation. 

Stipulation or Waiver of Grounds. 

Purpose. 

Purpose of requiring corroboration is to 
prevent parties from obtaining a divorce 
by collusion. Rachel v. Rachel, 21 Ark. 
App. 77, 729 S.W.2d 16 (1987), rev'd, 294 
Ark 110, 741 S.W.2d 240 (1987). 

Contested Cases. 

Although this section removed the need 
for corroboration in uncontested divorce 
suits it did not remove the requirement in 
contested suits. Adams v. Adams, 252 Ark. 
20, 477 S.W.2d 183 (1972); Morrow v. 
Morrow, 270 Ark. 31, 603 S.W.2d 431 (Ct. 
App. 1980). 

In contested suit wife's testimony was 
not corroborated and she was therefore 
not entitled to a divorce. Peter v. Peter, 10 
Ark. App. 292, 663 S.W.2d 744 (1984). 

In contested cases where corroboration 
has not been waived but there is no inti- 
mation of collusion, the corroborating evi- 
dence of grounds for divorce may be rela- 
tively slight. Gunnell v. Gunnell, 30 Ark. 
App. 4, 780 S.W.2d 597 (1989). 

Residence. 

An issue of residence deals directly with 
the authority, power and right of the trial 
court to act and therefore, the corroborat- 
ing evidence, although relatively slight, 
should not be speculative and vague in 



scope. Hingle v. Hingle, 264 Ark. 442, 572 
S.W.2d 395 (1978). 

Proof of residency held corroborated. 
Rachel v. Rachel, 294 Ark. 110, 741 S.W.2d 
240(1987). 

Residency must be corroborated and 
proven in every instance, despite admis- 
sion by a defendant. Hodges v. Hodges, 27 
Ark. App. 250, 770 S.W.2d 164 (1989). 

The purpose of the corroboration of resi- 
dency rule is to prevent procurement of 
divorce by collusion, and when there is no 
collusion, the corroboration required is 
slight. Hodges v. Hodges, 27 Ark. App. 
250, 770 S.W.2d 164 (1989). 

Proof of residency in a divorce action 
may not be dispensed with or supplied by 
the express and direct action of the par- 
ties, and it may not be supplied by their 
indirect actions through application of the 
doctrine of estoppel. Araneda v. Araneda, 
48 Ark. App. 236, 894 S.W.2d 146 (1995). 

Trial court had jurisdiction to grant a 
divorce as the necessary corroboration of 
the wife's residency was supplied by the 
wife's daughter, who testified that the wife 
had been a resident in the county for 9 or 
10 years before filing for divorce and reit- 
erated her previous testimony that the 
wife was a resident of the county for at 
least 3 months preceding the entry of the 
divorce decree. Rogers v. Rogers, 90 Ark. 
App. 321, 205 S.W.3d 856 (2005). 

Husband was ordered to file a substi- 
tuted brief in his appeal to the supreme 
court in which he challenged the circuit 
court's jurisdiction to enter the divorce 
decree as he failed to abstract his wife's 
testimony pursuant to Ark. Sup. Ct. & Ct. 



213 DIVORCE AND ANNULMENT 9-12-307 

App. R. 4-2 regarding the residency re- or waive grounds for divorce. Harpole v. 
quirements of § 9-12-307(a)(l)(A) and Harpole, 10 Ark. App. 298, 664 S.W.2d 480 
subdivision (c)(1) of this section. Roberts v. (1984) 

?°i be T^W oow.T T, S ;2S£ ~ 20 ° 9 0ral waiver made in °P en court and 

Ark. LEXIS 381 (May 21, 2009). recorded by the reporter £ ag vaHd ag 

Separation. though transcribed and executed. Rachel 

Although subdivision (c)(1) of this sec- v. Rachel, 294 Ark. 110, 741 S.W.2d 240 

tion requires that proof of separation and (1987). 

continuity of separation without cohabita- A judgment of divorce was reversed and 

tion be corroborated, it relates only to the case was dismissed without prejudice 

those grounds found in § 9-12-301(b)(5) where the plaintiff wife failed to corrobo- 

and (6) in which separation without co- rate her grounds for divorce and she also 

habitation is an element, or cases m which did not provide an expressed waiver of the 

cohabitation is an affirmative defense requ i rem ent of corroboration. Oates v. 

?w£f7^ nifo< PP - 5 °' 77 ° 0ates > 340 Ark. 431 > 10 S.W.3d 861, ap- 

s.w.za 104 uy»yj. peal dismissed5 340 Ark, 480j i S.W.3d 

Stipulation or Waiver of Grounds. 891 (2000). 

Regardless of whether a divorce is con- Cited: Holden v. Holden, 269 Ark. 850, 

tested or uncontested, the injured party 601 S.W.2d 247 (Ct. App. 1980); Calhoun v. 

must always prove his or her ground(s) for Calhoun, 3 Ark. App. 270, 625 S.W.2d 545 

divorce; in other words, existing statutory (1981); Price v. Price, 29 Ark. App. 212, 

law does not allow a spouse to stipulate to 780 S.W.2d 342 (1989). 

9-12-307. Matters that must be proved. 

(a) To obtain a divorce, the plaintiff must prove, but need not allege, 
in addition to a legal cause of divorce: 

(1)(A) A residence in the state by either the plaintiff or defendant for 
sixty (60) days next before the commencement of the action and a 
residence in the state for three (3) full months before the final 
judgment granting the decree of divorce. 

(B) No decree of divorce, however, shall be granted until at least 
thirty (30) days have elapsed from the date of the filing of the 
complaint. 

(C) When personal service cannot be had upon the defendant or 
when the defendant fails to enter his or her appearance in the action, 
no decree of divorce shall be granted the plaintiff until the plaintiff 
has maintained an actual residence in the State of Arkansas for a 
period of not less than three (3) full months; 

(2) That the cause of action and cause of divorce occurred or existed 
in this state or, if out of the state, that it was a legal cause of divorce in 
this state, the laws of this state to govern exclusively and independently 
of the laws of any other state as to the cause of divorce; and 

(3) That the cause of divorce occurred or existed within five (5) years 
next before the commencement of the suit. 

(b) "Residence" as used in subsection (a) of this section is defined to 
mean actual presence, and upon proof of that the party alleging and 
offering the proof shall be considered domiciled in the state, and this is 
declared to be the legislative intent and public policy of the State of 
Arkansas. 



9-12-307 



FAMILY LAW 



214 



History. Civil Code, § 459; C. & M. 
Dig., § 3505; Acts 1931, No. 71, p. 201; 
Pope's Dig., § 4386; Acts 1957, No. 36; 



1961, No. 146; A.S.A. 1947, §§ 34-1208, 
34-1208.1; Acts 1993, No. 418, § 1; 1999, 
No. 97, § 1. 



RESEARCH REFERENCES 



Ark. L. Rev. Conflict of Laws, 3 Ark. L. 
Rev. 20, 29. 



Conflict of Laws and Family Law, 14 
Ark. L. Rev. 47. 



CASE NOTES 



Analysis 

Constitutionality. 

Purpose. 

Cause Arising Outside State. 

Months. 

Notice. 

Residence. 

— In General. 

— Appearance. 

— Evidence. 

— Military Service. 

Time of Cause. 

Constitutionality. 

This subsection (b) of this section does 
not violate the full faith and credit clause 
or the due process clause of the Federal 
Constitution. Wheat v. Wheat, 229 Ark. 
842, 318 S.W.2d 793 (1958). 

Purpose. 

Subsection (b) of this section substitutes 
a simple requirement of residence, which 
can be proved with certainty, for the nebu- 
lous concept of domicile, which usually 
cannot be proved. Wheat v. Wheat, 229 
Ark. 842, 318 S.W2d 793 (1958). 

Subsection (b) of this section was in- 
tended to restore the rule of Squire v. 
Squire, 186 Ark. 511, 54 S.W2d 281 (1932) 
that only residence, not domicile, is re- 
quired under this section. Wheat v. 
Wheat, 229 Ark. 842, 318 S.W2d 793 
(1958). 

Cause Arising Outside State. 

Although desertion had not continued 
for necessary period to obtain divorce un- 
der laws of state where desertion first 
occurred, where plaintiff had in good faith 
moved to this state after desertion, and 
desertion continued after the required 
residence period elapsed, divorce could be 
granted. Mullenband v. Mullenband, 137 
Ark. 505, 208 S.W 801 (1919). 



Months. 

Where this statute says months, it 
means calendar months. Parseghian v. 
Parseghian, 206 Ark. 869, 178 S.W2d 49 
(1944). 

Notice. 

One spouse should not come into this 
state and obtain a divorce under this act 
without seeing to it that the nonresident 
spouse receives a notice of the pendency of 
the divorce suit in time to appear and 
defend the case if he or she desires to do 
so. Stinson v. Stinson, 203 Ark. 888, 159 
S.W2d 446 (1942). 

Residence. 

Trial court had jurisdiction to grant a 
divorce as the necessary corroboration of 
the wife's residency was supplied by the 
wife's daughter, who testified that the wife 
had been a resident in the county for 9 or 
10 years before filing for divorce and reit- 
erated her previous testimony that the 
wife was a resident of the county for at 
least 3 months preceding the entry of the 
divorce decree. Rogers v. Rogers, 90 Ark. 
App. 321, 205 S.W.3d 856 (2005). 

Trial court had proper jurisdiction over 
parties' divorce proceeding because under 
this section, an ex-wife was only required 
to reside in the state for 60 days prior to 
the commencement of the proceeding, not 
immediately before entry of the divorce 
decree. Accordingly, the fact that the ex- 
wife moved to and resided in New York 
while the action was pending and when 
the divorce decree was issued did not 
impact the trial court's jurisdiction. Rob- 
erts v. Yanyan Yang, 102 Ark. App. 384, 
285 S.W3d 689 (2008). 

Husband was ordered to file a substi- 
tuted brief in his appeal to the supreme 
court in which he challenged the circuit 
court's jurisdiction to enter the divorce 
decree as he failed to abstract his wife's 
testimony pursuant to Ark. Sup. Ct. & Ct. 



215 



DIVORCE AND ANNULMENT 



9-12-307 



App. R. 4-2 regarding the residency re- 
quirements of subdivision (a)(1)(A) of this 
section and § 9-12-306(c)(l). Roberts v. 
Roberts, — Ark. — , — S.W.3d — , 2009 
Ark. LEXIS 381 (May 21, 2009). 

— In General. 

Residence for the required period in this 
state is jurisdictional. Parseghian v. Par- 
seghian, 206 Ark. 869, 178 S.W.2d 49 
(1944); Porter v. Porter, 209 Ark. 371, 195 
S.W.2d 53 (1945); Troillet v. Troillet, 227 
Ark. 624, 300 S.W.2d 273 (1957). 

Domicile or residence is sufficient for 
jurisdiction in divorce cases. Weaver v. 
Weaver, 231 Ark. 341, 329 S.W2d 422 
(1959). 

The purpose of the corroboration of resi- 
dency rule is to prevent procurement of 
divorce by collusion, and when there is no 
collusion, the corroboration required is 
slight. Hodges v. Hodges, 27 Ark. App. 
250, 770 S.W2d 164 (1989). 

Residency must be corroborated and 
proven in every instance, despite admis- 
sion by a defendant. Hodges v. Hodges, 27 
Ark. App. 250, 770 S.W.2d 164 (1989). 

— Appearance. 

Wife's appearance before court did not 
confer jurisdiction upon the court if juris- 
diction did not otherwise exist. Kennedy v. 
Kennedy, 205 Ark. 650, 169 S.W.2d 876 
(1943). 

Wife could not file petition to set aside 
decree on the ground that husband was 
not a resident of county when decree was 
entered where she had filed a waiver and 
secured an attorney who represented her 
at trial and from which no appeal was 
taken. Anderson v. Anderson, 223 Ark. 
571, 267 S.W.2d 316 (1954). 

— Evidence. 

Evidence insufficient to find residence 
requirement for jurisdiction purposes un- 
der this section was complied with. Carl- 
son v. Carlson, 198 Ark. 231, 128 S.W.2d 
242 (1939); Gilmore v. Gilmore, 204 Ark. 
643, 164 S.W2d 446 (1942); Cassen v. 
Cassen, 211 Ark. 582, 201 S.W2d 585 
(1947); Walters v. Walters, 213 Ark. 497, 
211 S.W2d 110 (1948); Stimmel v. Stim- 
mel, 218 Ark. 293, 235 S.W2d 959 (1951); 
May v. May, 221 Ark. 585, 254 S.W2d 957 
(1953); Troillet v. Troillet, 227 Ark. 624, 
300 S.W2d 273 (1957); Graham v. Gra- 
ham, 254 Ark. 646, 495 S.W.2d 144 (1973). 



Residence in the state for two months 
before filing suit for divorce and for one 
month thereafter before the rendition of 
the decree is sufficient under this statute. 
Brickey v. Brickey, 205 Ark. 373, 168 
S.W2d 845 (1943). 

Evidence sufficient to find that resi- 
dence requirement for jurisdiction pur- 
poses under this section was complied 
with. Buck v. Buck, 205 Ark. 918, 171 
S.W2d 939 (1943); Young v. Young, 207 
Ark. 36, 178 S.W2d 994 (1944); Birnstill v. 
Birnstill, 218 Ark. 130, 234 S.W.2d 757 
(1950); Bachman v. Bachman, 274 Ark. 23, 
621 S.W2d 701 (1981). 

— Military Service. 

A soldier stationed in this state must 
have a residence in the state, apart from 
the military service, for a period of two 
months before filing a suit for divorce. 
Kennedy v. Kennedy, 205 Ark. 650, 169 
S.W2d 876 (1943). 

Constitutional provision that no soldier, 
sailor or marine shall acquire residence by 
reason of being stationed on duty in the 
state, means that he may not acquire 
residence from mere fact of being sta- 
tioned in the state, but, apart from that 
service, he must have a residence in the 
state for a period of two months before 
filing a suit for divorce. Mohr v. Mohr, 206 
Ark. 1094, 178 S.W2d 502 (1944). 

Army officer held not to have estab- 
lished a residence in Arkansas. Mohr v. 
Mohr, 206 Ark. 1094, 178 S.W2d 502 
(1944). 

Time of Cause. 

Action for divorce may be maintained 
more than five years after desertion by 
offending party since desertion is continu- 
ing in its nature. Poe v. Poe, 125 Ark. 391, 
188 S.W 1190 (1916). 

Evidence was sufficient to show that 
cause of divorce occurred up to and after 
the separation which took place one 
month before suit for divorce. James v. 
James, 211 Ark. 531, 201 S.W2d 14 
(1947). 

Evidence as to occurrences prior to five 
years before commencement of suit was 
admissible where its purpose was to show 
who was the injured party under the three 
year separation statute (now 18 months 
separation). Alexander v. Alexander, 227 
Ark. 938, 302 S.W2d 781 (1957). 

Cause of divorce occurring five years 
prior to the filing of defendant's complaint 



9-12-308 



FAMILY LAW 



216 



for divorce did not make the granting of a 
divorce to plaintiff erroneous where there 
was evidence of other causes. Alston v. 
Alston, 242 Ark. 804, 415 S.W.2d 578 
(1967). 

Cited: Hensley v. Hensley, 213 Ark. 



755, 212 S.W.2d 551 (1948); Peugh v. 
Oliger, 233 Ark. 281, 345 S.W.2d 610 
(1961); Milne v. Milne, 266 Ark. 900, 587 
S.W.2d 229 (Ct. App. 1979); Stewart v. 
Stewart, 16 Ark. App. 164, 698 S.W.2d 516 
(1985). 



9-12-308. Effect of collusion, consent, or equal guilt of parties. 

If it appears to the court that the adultery or other offense com- 
plained of has been occasioned by the collusion of the parties or done 
with an intent to procure a divorce, that the complainant was consent- 
ing thereto, or that both parties have been guilty of the adultery or 
other offense or injury complained of in the complaint, then no divorce 
shall be granted or decreed. 



History. Rev. Stat., ch. 51, § 8; C. & M. 
Dig., § 3507; Pope's Dig., § 4389; A.S.A. 
1947, § 34-1209. 



Cross References. Condonation abol- 
ished, see § 9-12-325. 



CASE NOTES 



Analysis 

Collusion. 
Condonation. 
Fault of Parties. 

Collusion. 

Where both parties are guilty of collu- 
sion and fraud on the court, both parties 
are precluded from relief of any kind con- 
nected with a divorce decree. Oberstein v. 
Oberstein, 217 Ark. 80, 228 S.W.2d 615 
(1950). 

Condonation. 

Renewal of matrimonial intercourse af- 
ter the ground for divorce is a condonation 
of the ground. Reed v. Reed, 62 Ark. 611, 
37 S.W. 230 (1896); Shirey v. Shirey, 87 
Ark. 175, 112 S.W. 369 (1908). 

Evidence insufficient to find a condona- 
tion of desertion. Alexander v. Alexander, 
94 Ark. 438, 127 S.W. 740 (1910). 

Evidence sufficient to find condonation. 
Phillips v. Phillips, 102 Ark. 679, 144 S.W. 
914 (1912). 



Fault of Parties. 

No relief will be afforded to either party 
if the testimony discloses that they are 
equally in fault. Cate v. Cate, 53 Ark. 484, 
14 S.W. 675 (1890); McCollum v. McCol- 
lum, 227 Ark. 735, 301 S.W2d 565 (1957). 

The court has discretion in an action 
wherein both parties ask for absolute di- 
vorce to grant a divorce from bed and 
board to the party least at fault, although 
neither party is entirely blameless. Crews 
v. Crews, 68 Ark. 158, 56 S.W. 778 (1900). 

Husband was not entitled to divorce for 
cause alleged in complaint where he was 
guilty of adultery. Evans v. Evans, 219 
Ark. 325, 241 S.W2d 713 (1951). 

Since it appeared to the court that both 
parties seeking a divorce were guilty of 
adultery, the decree granting a divorce 
must be reversed. Moore v. Moore, 230 
Ark. 213, 322 S.W2d 77 (1959). 

Cited: In re Thomas, 331 B.R. 798 
(Bankr. W.D. Ark. 2005). 



9-12-309. Maintenance and attorney's fees — Interest. 

(a)(1) During the pendency of an action for divorce, whether absolute 
or from bed and board, separate maintenance, or alimony, the court 
may: 

(A)(i) Allow to the wife or to the husband maintenance; 

(ii) Allow a reasonable fee for her or his attorneys; and 



217 DIVORCE AND ANNULMENT 9-12-309 

(iii) Allow expert witness fees; and 

(B) Enforce the payment of the allowance by orders and executions 
and proceedings as in cases of contempt. 

(2) In the final decree of an action for absolute divorce, the court may 
award the wife or husband costs of court, a reasonable attorney's fee, 
and expert witness fees. 

(3) The court may immediately reduce the sums so ordered to 
judgment and allow the party to execute upon the marital property for 
the payment of the allowance, except that the homestead shall not be 
executed upon for the payment of the sums so ordered. 

(b) The court may allow either party additional attorney's fees for the 
enforcement of alimony, maintenance, and support provided for in the 
decree. 

(c) All child support that becomes due and remains unpaid shall 
accrue interest at the rate often percent (10%) per annum. 

(d) The court shall award a minimum of ten percent (10%) of the 
support amount due as attorney's fees in actions for the enforcement of 
payment of alimony, maintenance, and support provided for in the 
decree, judgment, or order. 

(e) Collection of interest and attorney's fees may be by executions, 
proceedings of contempt, or other remedies as may be available to 
collect the original support award. 

History. Civil Code, § 460; C. & M. 1979, No. 705, § 2; 1983, No. 161, § 1; 
Dig., § 3506; Pope's Dig., § 4388; Acts A.S.A. 1947, § 34-1210; Acts 1987, No. 
1941, No. 25, § 1; 1945, No. 274, § 1; 813, § 1; 2001, No. 207, § 1. 

RESEARCH REFERENCES 

Ark. L. Rev. Insanity Procedure in utes on Dower, Election, Statutory Allow- 

Cases of Contempt for Default in Family ances, and Homestead Are 

Support Payments, 5 Ark. L. Rev. 361. Unconstitutional, Hess v. Wims, 272 Ark. 

Taxability of Attorneys' Fees as Costs, 9 43^ 613 S.W.2d 85 (1981); Stokes v. Stokes, 

Ark. L. Rev. 70. 271 Ark. 300, 613 S.W.2d 372, 18 

Support-Alimony, Suit Money and Prop- A . L .R.4th 903 (1981), 4 U. Ark. Little Rock 

erty Settlement, 14 Ark. L. Rev. 61. ^ J 361 

Note A Secured Party's Right to Re- ' Le ^ slation of the 1983 General Assem . 

cover Attorney s Fees and Expenses: « Ark ^ Rock LJ 

Svestka v. First National Bank in Stut- J ' 

tgart, 35 Ark. L. Rev. 579. bZ f . _ __, , , „ „ ., 

U. Ark. Little Rock L.J. Hawthorne, T Arkansas Law Survey, Waddell Family 

Note: Family Law - Divorce - Constitu- Law > 7 U - Ark - Ll ^ Rock L J. 229 

tionality of Arkansas Property Settlement Surve y ~ Famil y Law > 10 U - Ark - Llttle 

and Alimony Statutes, 2 U. Ark. Little R°ck L.J. 577. 

Rock L.J. 123. U* Ark. Little Rock L. Rev. Survey of 

Shively, Survey of Family Law, 3 U. Ark. Legislation, 2001 Arkansas General As- 
Little Rock L.J. 223. sembly, Family Law, 24 U. Ark. Little 

Note, Constitutional Law — Equal Pro- Rock L. Rev. 483. 
tection — Arkansas' Gender-Based Stat- 



9-12-309 



FAMILY LAW 
CASE NOTES 



218 



Analysis 

Constitutionality. 
In General. 
Applicability. 

Amount of Allowance. 

Appeal. 

Attorney's Fees. 

Child Custody Proceedings. 

Discretion of Court. 

Enforcement. 

Marital Property. 

Minors. 

Modification. 

Setting Aside. 

Showing of Merit. 

Note. — Many of the following cases were 
decided prior to the 1979 amendment 
to this section which made mainte- 
nance, etc.. available to the husband 
as well as the wife in divorce proceed- 
ings. 

Constitutionality. 

A husband's liability for the attorney's 
fee of his wife in a divorce suit is statutory 
and not a debt by contract within Ark. 
Const.. .Art. 9. § 1. exempting personal ty 
of an unmarried person as against debts 
bv contract. Walker v. Walker. 14 S .Ark. 
17 . 229 S.W. 11 1921 . 

Where this section prior to its 1979 
amendment granted rights to temporary 
alimony maintenance and attorney fees 
only to wives and not to husbands, this 
section contained a gender-based classifi- 
cation which, as compared to a gender- 
neutral one. generated additional benefits 
only for those it had no reason to prefer, 
and therefore, this section was unconsti- 
tutional as a violation of the equal protec- 
tion clauses of the United States and 
Arkansas Constitutions. Hatcher v. 
Hatcher. 265 Ark. 681, 580 S.W.2d 475 
1979 decision prior to 1979 amend- 
ment . 

In General. 

In a suit for divorce, a chancellor has 
power to award alimony pendente lite to 
the wife: in the absence of any proof of 
separate property in the wife, it is just and 
reasonable to compel the husband to fur- 
nish the means for her to prosecute or 
defend the suit and with necessaries suit- 



able to her station in society- and his 
means. Glenn v. Glenn. 44 Ark. 46 IS 54 

A husband may not defeat his wife's 
right to support during the pendency of 
her divorce action by offering to return to 
the home and support her. Womack v. 
Womack. 247 Ark. 1130. 449 S.W.2d 399 
1970). 

Trial court properly considered the fac- 
tors to be used in determining an award of 
alimony and properly found that the ex- 
wife was entitled to a lifetime award 
where ' 1 ' she remained at home through- 
out the majority- of her 25-year marriage: 
2 she had not worked for the pas: 20 
years, ever since the parties' child was 
born: 1 3 1 her only employment experience 
came from jobs paying at or slightly more 
than minimum wage: 4 she did not have 
a collr_ g -e and she did not think she 
had the skills to return to college at her 
age: and 5 the husband had the ability* to 
pav the alimonv award. Hiett v. Hiett. S6 
Ark App. 31. 158 S.W.3d 720 i2004). 

Sufficient evidence supported the trial 
judge's findings that the relationship be- 
tween the wife and her boyfriend was not 
one of sharing economic responsibility, 
and that he was neither a member of her 
household nor a member of her family: the 
boyfriend and wife had no joint bank ac- 
counts, credit cards, or other financial 
holdings, obligations, or ties, and whether 
or not they were romantically involved 
was not determinative of whether termi- 
nation of alimony was appropriate. Gib- 
son v. Gibson. S7 Ark. App. 62. 185 S.W.3d 
122 _ M 

Increase in alimony to wife was proper 
as wife proved a material change in cir- 
cumstances: her diagnosis of rheumatoid 
arthritis affected her ability to supple- 
ment her income as she had done in the 
past by being a massage therapist and 
limited her potential emplovinent in other 
fields. Weeks v. Wilson. 95 Ark. App. 88, 
234 S.W.3d 333 2006). 

Applicability. 

Where a petition is filed to set aside a 
default decree obtained on constructive 
service alleging that the decree was pro- 
cured by fraud, the court may allow the 
defendant temporary alimony and attor- 
ney's fees. Stewart v. Stewart. 101 Ar 
141 S.W. 193 1911 . 



219 



DIVORCE AND ANNULMENT 



9-12-309 



An action to vacate a divorce decree is 
not governed by this section. Floyd v. 
Isbell, 211 Ark. 631, 201 S.W.2d 755 
(1947). 

Acts 1979, No. 705, which amended this 
section to make it gender-neutral, could 
not be retroactively applied absent clear 
legislative intent to that effect, and since 
there was no indication of such intent, the 
act was only prospective in its application. 
Sweeney v. Sweeney, 267 Ark. 595, 593 
S.W.2d 21 (1980), overruled in part, Day v. 
Day, 281 Ark. 261, 663 S.W.2d 719 (1984). 

Amount of Allowance. 

A court of chancery in estimating the 
allowance to be made the wife, pendente 
lite, on a bill for divorce, will take into 
consideration her expenses to be incurred 
during the progress of the suit; where an 
allowance has been made for her, it will be 
presumed that her counsel's fee was con- 
sidered in fixing the amount. Bauman v. 
Bauman, 18 Ark. 320 (1857). 

In a separate maintenance suit award 
for support of wife as temporary allowance 
was reduced. McGuire v. McGuire, 231 
Ark. 613, 331 S.W.2d 257 (1960). 

Trial court did not abuse its discretion 
in refusing to allow plaintiff more money 
for alimony and attorney's fees pending 
further litigation since the allowances 
made were only temporary and there was 
no way of knowing pending a full and final 
hearing the needs of plaintiff or the finan- 
cial status of defendant. Yohe v. Yohe, 238 
Ark. 642, 383 S.W.2d 665 (1964). 

Attorney's fees of $8,000 awarded in 
child custody modification action under 
the authority of subsection (a) of this 
section. Jones v. Jones, 327 Ark. 195, 938 
S.W.2d 228 (1997). 

In a divorce case, the trial court did not 
err by ordering former husband to pay 
former wife $100 per month in alimony 
because the evidence showed that he had 
the ability to pay, he was not responsible 
for child support after the child's gradua- 
tion from high school, and the child's col- 
lege expenses were not considered; more- 
over, husband's arguments concerning 
wife's decision to move and her account- 
ability for her financial situation were 
rejected. Kuchmas v. Kuchmas, 368 Ark. 
43, 243 S.W.3d 270 (2006). 

Trial court abused its discretion in or- 
dering husband to pay wife alimony in the 
amount of $250 per week for six months 



from the date of the divorce decree where 
the wife's needs far outweighed the hus- 
band's ability to provide alimony for six 
months; the wife, who was unemployed 
but seeking employment, had no assets, 
other than those awarded by the trial 
court, upon which to rely for support. 
Bailey v. Bailey, 97 Ark. App. 96, 244 
S.W.3d 712 (2006). 

In a divorce action, an alimony award to 
a former wife was proper when the wife 
chose to home-school two minor children, 
was a stay at home mother under an 
agreement between the parties, and had 
no marketable skills or meaningful em- 
ployment history. Taylor v. Taylor, 369 
Ark. 31, 250 S.W.3d 232 (2007). 

Appeal. 

An appeal from an order for ad interim 
alimony may be taken immediately. 
Casteel v. Casteel, 38 Ark. 477 (1882). 

A decree for alimony pendente lite is a 
final decree which is appealable. Glenn v. 
Glenn, 44 Ark. 46(1884). 

As incident to its appellate jurisdiction, 
the Supreme Court has power pending an 
appeal in a divorce suit to make an order 
allowing a wife costs and suit money. In re 
Smith, 183 Ark. 1025, 39 S.W.2d 703 
(1931). 

Husband in appeal from divorce action 
has no standing to raise any question 
about the constitutionality of allowing ali- 
mony and attorney's fees where no allow- 
ance was made. McNew v. McNew, 262 
Ark. 567, 559 S.W.2d 155 (1977). 

Attorney's Fees. 

Attorneys' fees allowed. Stearns v. 
Stearns, 211 Ark. 568, 201 S.W.2d 753 
(1947); Cook v. Cook, 233 Ark. 961, 349 
S.W.2d 809 (1961); Jerry v. Jerry, 235 Ark. 
589, 361 S.W.2d 92 (1962); Wood v. Wright, 
238 Ark. 941, 386 S.W2d 248 (1965); 
Grumbles v. Grumbles, 245 Ark. 77, 431 
S.W2d 241 (1968); Paulson v. Paulson, 8 
Ark. App. 306, 652 S.W.2d 46 (1983). 

Attorneys' fees not allowed. Warren v. 
Warren, 215 Ark. 567, 221 S.W.2d 407 
(1949). 

Order of court requiring plaintiff to de- 
posit a stated sum for attorney's fees and 
expenses of wife in the defense of action 
before wife was required to plead was 
within court's discretion. Goynes v. 
Goynes, 231 Ark. 47, 328 S.W2d 258 
(1959). 



9-12-309 



FAMILY LAW 



220 



Awarding of attorneys' fees was a mat- 
ter for the sound discretion of the trial 
court. Where evidence supported it. it was 
not an abuse of discretion for the trial 
court to award attorneys' fee. Goodloe v. 
Goodloe. 253 Ark. 550* 487 S.W.2d 593 
(1972). 

Attorneys' fees were not awarded under 
this section as a matter of right, the grant- 
ing or denial of the fees being within the 
sound discretion of the chancellor: evi- 
dence sufficient to find that chancellor did 
not abuse his discretion in refusing to 
award fees. Ryan v. Baxter. 253 Ark. 82 L, 
489 S.W.2d 241 (1973). 

During the pendency of an action for an 
absolute divorce or a limited one. the 
chancery- court has the authority to allow 
attorney's fees to either spouse upon a 
showing of circumstances warranting it. 
Paulson v. Paulson, 8 Ark. App. 306. 652 
S.W.2d46(1983). 

Chancellor had authority under this 
section to grant attorney's fees to either 
party where the circumstances warranted 
the relief; wife's amendment to her com- 
plaint eliminating her prayer for divorce 
did not deprive the court of its authority 
with respect to attorney's fees on the hus- 
band's pending cross-complaint for di- 
vorce. Paulson v. Paulson, 8 Ark. App. 306. 
652 S.W.2d46 (1983). 

Disparity of the parties' respective in- 
comes, while relevant, cannot alone jus- 
tify an award of attorneys' fees. Scroggins 
v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 
(1990). 

The chancellor did not abuse his discre- 
tion by declining to award wife attorney's 
fees and costs, despite her claim of dispar- 
ity in the parties' incomes and ability to 
pay these amounts. McKay v. McKay, 340 
Ark. 171, 8 S.W.3d 525 (2000). 

The chancellor abused her discretion in 
awarding attorney's fees to a wife where 
( 1 ) the case involved a marriage of more 
than 30 years and complex property-divi- 
sion issues, and the chancellor herself had 
a crowded docket that complicated timely 
scheduling of ample hearing time to ad- 
dress all of the property-division issues, 
'2) the grounds upon which the divorce 
was granted. 18 months' separation of the 
parties, did not accrue until just days 
before the final hearing, and (3) the chan- 
cellor awarded each party an equal share 
of the marital property despite the fact 
that the husband was retired and was 



living on a pension that was less than half 
of the wife's income. Jablonski v. 
Jablonski, 71 Ark. App. 33. 25 S.W3d 433 
(2000). 

Trial court did not abuse its discretion 
in awarding mother attorney's fees of 
S 1.000 where father was in contempt of 
court for making child support payments 
payable to the minor children rather than 
to the mother, for failing to make child 
support payments in a timely fashion, for 
failing to pay drug and dental expenses, 
and for failing to furnish mother with the 
required copies of his W2 and 1099 tax 
forms. Martin v. Scharbor. 95 Ark. App. 
52, 233 S.W.3d 689 <2006>. 

In a domestic relations case, the trial 
court appropriately granted an ex-wife's 
motion for attorney's fees pursuant to 
§ 16-22-308 and this section, because her 
ex-husband, in challenging the attorney's 
fee award, offered only his own reasoning 
and the language of the statutes in sup- 
port of his argument; he cited no legal 
authority in support of his position, which 
was a sufficient reason to affirm the trial 
court's ruling. Artman v. Hoy, 370 Ark. 
131, 257 S.W.3d 864 (2007). 

Given the trial court's great discretion 
as to the issuance of an attorney's fee 
award in alimony cases, the trial court 
properly awarded the wife attorney's fees 
and expenses under subsection (b) of this 
section, since the evidence supported the 
finding that a substantial change in cir- 
cumstances, particularly the husband's 
ability to pay and the wife's need, existed 
to modify the parties' divorce decree to 
continue and increase the wife's alimony. 
Bettis v. Bettis. 100 Ark. App. 295, 267 
S.W.3d 646(2007). 

Child Custody Proceedings. 

Where petition for modification of di- 
vorce decree relates only to child custody, 
the allowance of attorney's fees is within 
the sound judicial discretion of the court. 
Finkbeiner v. Finkbeiner. 226 Ark. 165, 
288 S.W.2d 586 (1956). 

Where father brought suit against ex- 
wife for contempt with regard to her ac- 
tions in violating a custody agreement by 
secreting their child outside the jurisdic- 
tion of the Arkansas Chancery Court, 
award of attorney's fees incurred in the 
contempt proceeding, even though such a 
proceeding is not specifically included in 
this section is proper, since the chancery 



221 



DIVORCE AND ANNULMENT 



9-12-309 



court had the inherent power and jurisdic- 
tion to do so in an equity proceeding. 
Payne v. White, 1 Ark. App. 271, 614 
S.W.2d 684 (1981). 

Discretion of Court. 

Grant of alimony, maintenance, attor- 
ney's fees, etc., is within sound discretion 
of trial court and will not be disturbed on 
appeal absent an abuse of discretion. 
Gladfelter v. Gladfelter, 205 Ark. 1019, 
172 S.W.2d 246 (1943); Lewis v. Lewis, 222 
Ark. 743, 262 S.W.2d 456 (1953); McGuire 
v. McGuire, 231 Ark. 613, 331 S.W.2d 257 
(1960); Johnson v. Johnson, 240 Ark. 657, 
401 S.W.2d 213 (1966). 

In a separate maintenance and custody 
suit in which the wife was unsuccessful, it 
was within the court's discretion to deny 
the wife's request for attorney's fees. 
Tilley v. Tilley, 210 Ark. 850, 198 S.W.2d 
168 (1946). 

Trial court did not abuse its discretion 
in denying wife's motion for costs, main- 
tenance, and attorney fees where she 
failed to obey order of court. Relbstein v. 
Relbstein, 220 Ark. 783, 249 S.W.2d 847 
(1952). 

The questions of the allowance of ali- 
mony, attorney's fees and suit money to a 
wife pending a husband's divorce action 
are within the sound discretion of the 
court where commensurate with the hus- 
band's ability and duty to pay and the 
wife's needs, except that it must give a 
decree for alimony under a properly certi- 
fied and authenticated copy of a decree of 
another state. Kearney v. Kearney, 224 
Ark. 484, 274 S.W.2d 779 (1955). 

An award of attorney's fees is within the 
discretion of the trial court in a divorce 
case and will not be reversed absent an 
abuse of discretion. Burns v. Burns, 312 
Ark. 61, 847 S.W.2d 23 (1993). 

Order that husband pay wife's attor- 
ney's fees in a divorce case upheld where 
chancellor determined that the husband 
was in a much better financial position. 
Anderson v. Anderson, 60 Ark. App. 221, 
963 S.W.2d 604 (1998). 

Trial court's decrease in husband's ali- 
mony payments was proper even though 
husband indicated that the relief was not 
great enough as, given that the trial 
court's findings indicated it looked at the 
wife's needs and the husband's ability to 
pay, the trial court did not abuse its dis- 
cretion in reducing the obligation by only 



30%. Valetutti v. Valetutti, 95 Ark. App. 
83, 234 S.W.3d 338 (2006). 

Enforcement. 

Courts of chancery have jurisdiction to 
enforce payment of alimony by all means 
by which courts usually compel obedience, 
including dismissal of complaint for dis- 
obedience to the order. Casteel v. Casteel, 
38 Ark. 477 (.1882). 

This section and § 9-12-313 provides 
adequate remedy for the enforcement of 
decrees for alimony and maintenance. 
East v. East, 148 Ark. 143, 229 S.W. 5 
(1921). 

A final decree granting a divorce super- 
sedes an order for temporary alimony. 
Tracy v. Tracy, 184 Ark. 832, 43 S.W.2d 
539 (1931); Lewis v. Lewis, 222 Ark. 743, 
262 S.W.2d 456 (1953). 

Where husband filed notice of appeal 
from trial judge's order in divorce proceed- 
ing and wife filed notice of cross-appeal 
but neither party filed supersedeas bond, 
trial court had not lost jurisdiction and 
could enforce order by contempt proceed- 
ing. Kearney v. Butt, 224 Ark. 94, 271 
S.W2d 771 (1954). 

Husband was not guilty of contempt for 
refusing to pay monthly payments he had 
been ordered to pay for maintenance re- 
sulting from prior proceedings in which no 
divorce had been requested after the hus- 
band was granted a divorce in proceedings 
in which the wife was not personally 
served. Smith v. Smith, 236 Ark. 141, 365 
S.W2d 247 (1963). 

Trial court was ordered to enforce the 
original alimony award of $350 per month 
for 12 months, plus a $5,000 lump sum, 
because the original chancellor had the 
authority to enforce that alimony award; 
those sums accrued prior to the entry of 
the decree in the instant case and were 
therefore not subject to modification. Rog- 
ers v. Rogers, 90 Ark. App. 321, 205 S.W3d 
856 (2005). 

Marital Property. 

Where trial court had entered a tempo- 
rary order pursuant to this section, and 
that order did not deal with or affect the 
distribution of the parties' properties, § 9- 
12-3 15(b)(3) was not applicable. Allen v. 
Allen, 17 Ark. App. 38, 702 S.W.2d 819 
(1986). 

Trial court did not purport to divide any 
future, non-vested employment benefits 



9-12-310 



FAMILY LAW 



222 



pursuant to the divorce decree but, rather, 
based the award of future alimony on a 
percentage of the ex-husband's net in- 
come, including any bonuses or stock op- 
tions that the husband received in the 
future as part of the definition of his net 
income; thus, it was not error for the trial 
court to include stock options that might 
be exercised by the husband in the future 
as part of his net income for alimony 
purposes, given that all sources of income 
had to be considered in determining ali- 
mony. Hiett v. Hiett, 86 Ark. App. 31, 158 
S.W.3d 720 (2004). 

Minors. 

In an action by an infant husband, 
brought by his guardian and parent to 
annul a marriage with another infant, a 
judgment cannot be rendered against the 
guardian and parent for alimony. Erwin v. 
Erwin, 120 Ark. 581, 180 S.W. 186 (1915). 

Modification. 

Modification of alimony was warranted 
where a wife's income and education level 
had increased, she was able to afford a 
nice home and automobiles, she received 
8400,000 in assets from the property dis- 
tribution, and she was only supporting 
one child. Parker v. Parker, 97 Ark. App. 
298, 248 S.W.3d 523 (2007). 

Setting Aside. 

Where a wife brought suit for divorce, a 
temporary order allowing her alimony, at- 
torney's fees, and cost money may be set 
aside at a subsequent term of court. Poe v. 
Poe, 93 Ark. 426, 124 S.W. 1029 (1910). 

Showing of Merit. 

In a proceeding for divorce, where the 
plaintiff applies for alimony pendente lite 
and an allowance for attorney's fees, she 
must make some showing of merit by 
affidavit or otherwise, if the allegations of 
her complaint are denied by the answer 
supported by the affidavits of witnesses. 
Countz v. Countz, 30 Ark. 73 (1875). 

The wife must make a showing of merit 
before the court will allow temporary ali- 
mony and suit money. Slocum v. Slocum. 
86 Ark. 469, 111 S.W. 806 (1908). 



Cohabitation that occurred during mis- 
conduct of spouse and prior to separation 
of the parties is not an available defense 
to ad interim allowances under this sec- 
tion. Brabham v. Brabham. 240 Ark. 172, 
398 S.W2d 514 (1966). 

Trial court did not err in awarding a 
wife SI per year in alimony because she 
received over SI million in assets, with a 
substantial amount of cash. Cummings v. 
Cummings. 104 Ark. App. 315, — S.W3d 

— (2009). 

Order awarding a wife alimony in the 
amount of S 1,500 per month in a divorce 
action was proper because the trial court 
considered the proper factors, including 
the wife's significant health problems im- 
pacting her ability to earn an income; the 
husband's good health; the likelihood that 
the husband would continue working un- 
til retirement age; and the husband's 2007 
projected gross earnings. Jackson v. Jack- 
son, — Ark. App. — , — S.W3d — , 2009 
Ark. App. LEXIS 289 (Apr. 1, 2009). 

Trial court properly denied a wife's re- 
quest for alimony in a divorce action be- 
cause there was evidence introduced 
showing that, while the wife arguably had 
a need for alimony, the husband's finan- 
cial situation was not as robust as his 
salary alone would indicate; the husband 
still maintained a house payment and car 
payments for himself and the children 
while the wife, pursuant to an agreed 
upon property division, had no debt, no 
house payment, and no car payment. 
Whitworth v. Whitworth. — Ark. App. — , 

— S.W.3d — , 2009 Ark. App. LEXIS 571 
(May 20, 2009). 

Cited: Kuespert v. Roland, 222 Ark. 
153. 257 S.W.2d 562 (1953); Lewis v. 
Lewis. 222 Ark. 743, 262 S.W.2d 456 
(1953): Milne v. Milne. 266 Ark. 900, 587 
S.W.2d 229 (Ct. App. 1979); Stokes v. 
Stokes, 271 Ark. 300, 613 S.W2d 372, 18 
A.L.R.4th 903 (1981); Russell v. Interna- 
tional Paper Co., 2 Ark. App. 355, 621 
S.W.2d 867 (1981); Elkins v. Coulson, 293 
Ark. 539, 739 S.W.2d 675 (1987); Green v. 
Bell, 308 Ark. 473, 826 S.W2d 226 (1992); 
Gavin v. Gavin, 319 Ark. 270. 890 S.W.2d 
592 (1995). 



9-12-310. Waiting period before rendition of decree. 

Unless the parties shall have lived separate and apart from each 
other for a period of twelve (12) months next before the filing of the 



223 DIVORCE AND ANNULMENT 9-12-312 

complaint or unless the defendant is constructively summoned by 
publication of warning order, no decree of absolute divorce or of divorce 
from bed and board shall be rendered in any action brought on any 
grounds except bigamy before the thirtieth day following the day upon 
which the action for divorce is commenced. This prohibition is not 
subject to waiver by either or both parties to the action for divorce. 
However, the parties may agree that the case may be submitted in 
vacation. 

History. Acts 1953, No. 348, § 1; A.S.A. 
1947, § 34-1218. 

CASE NOTES 

Cited: Douglas v. Douglas, 227 Ark. 
1057, 304 S.W.2d 947 (1957). 

9-12-311. Legitimacy of children not affected. 

The injured party may apply for a decree of divorce, but no divorce 
shall affect the legitimacy of the children born previously to entering 
the decree in the case. 

History. Rev. Stat., ch. 51, § 2; C. & M. 
Dig., § 3501; Pope's Dig., § 4382; A.S.A. 
1947, § 34-1203. 

CASE NOTES 

Cited: Narisi v. Narisi, 233 Ark. 525, v. Ark. Dep't of Human Servs., 103 Ark. 
345 S.W.2d 620 (1961); Warren v. Warren, App. 263, 288 S.W3d 665 (2008). 
273 Ark. 528, 623 S.W.2d 813 (1981); Tuck 

9-12-312. Alimony — Child support — Bond — Method of pay- 
ment. 

(a)(1) When a decree is entered, the court shall make orders concern- 
ing the alimony of the wife or the husband and the care of the children, 
if there are any, as are reasonable from the circumstances of the parties 
and the nature of the case. Unless otherwise ordered by the court or 
agreed to by the parties, the liability for alimony shall automatically 
cease upon the earlier of: 

(A) The date of the remarriage of the person who was awarded the 
alimony; 

(B) The establishment of a relationship that produces a child or 
children and results in a court order directing another person to pay 
support to the recipient of alimony, which circumstances shall be 
considered the equivalent of remarriage; or 

(C) The establishment of a relationship that produces a child or 
children and results in a court order directing the recipient of 
alimony to provide support of another person who is not a descendant 



9-12-312 FAMILY LAW 224 

by birth or adoption of the payor of the alimony, which circumstances 
shall be considered the equivalent of remarriage. 

(2) In determining a reasonable amount of support, initially or upon 
review to be paid by the noncustodial parent, the court shall refer to the 
most recent revision of the family support chart. It shall be a rebuttable 
presumption for the award of child support that the amount contained 
in the family support chart is the correct amount of child support to be 
awarded. Only upon a written finding or specific finding on the record 
that the application of the support chart would be unjust or inappro- 
priate, as determined under established criteria set forth in the family 
support chart, shall the presumption be rebutted. 

(3) The family support chart shall be revised at least once every four 
(4) years by a committee to be appointed by the Chief Justice of the 
Supreme Court to ensure that the support amounts are appropriate for 
child support awards. The committee shall also establish the criteria for 
deviation from use of the chart amount. 

(4) The Supreme Court shall approve the family support chart and 
criteria upon revision by the committee for use in this state and shall 
publish it through per curiam order of the court. 

(5)(A) The court may provide for the payment of support beyond the 
eighteenth birthday of the child to address the educational needs of a 
child whose eighteenth birthday falls prior to graduation from high 
school so long as such support is conditional on the child remaining in 
school. 

(B) The court may also provide for the continuation of support for 
an individual with a disability that affects the ability of the indi- 
vidual to live independently from the custodial parent, 
(b) In addition to any other remedies available, alimony may be 
awarded under proper circumstances to either party in fixed install- 
ments for a specified period of time subject to the contingencies of the 
death of either party, the remarriage of the receiving party, or such 
other contingencies as are set forth in the award, so that the payments 
qualify as periodic payments within the meaning of the Internal 
Revenue Code. 

(c)(1) When the order provides for payment of money for the support 
and care of any children, the court, in its discretion, may require the 
person ordered to make the payments to furnish and file with the clerk 
of the court a bond or post security or give some other guarantee in such 
amount and with such sureties as the court shall direct. 

(2) The bond, security, or guarantee is to be conditioned on compli- 
ance with that part of the order of the court concerning the support and 
care of the children. 

(3) If such action is taken due to a delinquency under the order, 
proper advance notice to the noncustodial parent shall be given. 

(d) All orders requiring payments of money for the support and care 
of any children shall direct the payments to be made through the 
registry of the court unless the court in its discretion determines that it 
would be in the best interest of the parties to direct otherwise. However, 



225 DIVORCE AND ANNULMENT 9-12-312 

in all cases brought pursuant to Title IV-D of the Social Security Act, 
the court shall order that all payments be made through the Arkansas 
child support clearinghouse in accordance with § 9-14-801 et seq. 
(e)(1)(A) Except as set forth in subdivision (e)(5) of this section, all 
orders directing payments through the registry of the court or 
through the Arkansas child support clearinghouse shall set forth a 
fee to be paid by the noncustodial parent or obligated spouse in the 
amount of thirty-six dollars ($36.00) per year. 

(B) The fee shall be collected from the noncustodial parent or 
obligated spouse at the time of the first support payment and during 
the anniversary month of the entry of the order each year thereafter, 
or nine dollars ($9.00) per quarter at the option of the obligated 
parent, until no children remain minor and the support obligation is 
extinguished and any arrears are completely liquidated. 

(2) The clerk, upon direction from the court and as an alternative to 
collecting the annual fee during the anniversary month each year after 
entry of the order, may prorate the first fee collected at the time of the 
first payment of support under the order to the number of months 
remaining in the calendar year and thereafter collect all fees as 
provided in this subsection during the month of January of each year. 

(3) Payments made for this fee shall be made on an annual basis in 
the form of a check or money order payable to the clerk of the court or 
such other legal tender that the clerk may accept. This fee payment 
shall be separate and apart from the support payment and under no 
circumstances shall the support payment be reduced to fulfill the 
payment of this fee. 

(4) Upon the nonpayment of the annual fee by the noncustodial 
parent within ninety (90) days, the clerk may notify the payor under the 
order of income withholding for child support who shall withhold the fee 
in addition to any support and remit it to the clerk. 

(5) In counties where an annual fee is collected and the court grants 
at least two thousand five hundred (2,500) divorces each year, the court 
may require that the initial annual fee be paid by the noncustodial 
parent or obligated spouse prior to the filing of the order. 

(6) All moneys collected by the clerk as a fee as provided in this 
subsection shall be used by the clerk's office to offset administrative 
costs as a result of this subchapter. At least twenty percent (20%) of the 
moneys collected annually shall be used to purchase, maintain, and 
operate an automated data system for use in administering the require- 
ments of this subchapter. The acquisition and update of software for the 
automated data system shall be a permitted use of these funds. All fees 
collected under this subsection shall be paid into the county treasury to 
the credit of the fund to be known as the "support collection costs fund". 
Moneys deposited into this fund shall be appropriated and expended for 
the uses designated in this subdivision (e)(6) by the quorum court at the 
direction of the clerk of the court. 

(f) The clerk of the court shall maintain accurate records of all 
support orders and payments made under this section and shall post to 



9-12-312 



FAMILY LAW 



226 



individual child support account ledgers maintained in the clerk's office 
all payments received directly by the Office of Child Support Enforce- 
ment of the Revenue Division of the Department of Finance and 
Administration and reported to the clerk by the office. The office shall 
provide the clerk with sufficient information to identify the custodial 
and noncustodial parents, a docket number, and the amount and date of 
payment. The clerk shall keep on file the information provided by the 
office for audit purposes. 

(g) The clerk may accept the support payment in any form of cash or 
commercial paper, including personal check, and may require that the 
custodial parent or nonobligated spouse be named as payee thereon. 



History. Rev. Stat., ch. 51, § 9; C. & M. 
Dig., § 3508; Pope's Dig., § 4390; Acts 
1951, No. 56, § 1; 1979, No. 705, § 3; 
1981, No. 657, § 1; 1985, No. 989, § 1; 
1986 (2nd Ex. Sess.), No. 12, § 1; A.S.A. 
1947, § 34-1211; Acts 1987, No. 599, § 1; 
1989, No. 100, § 1; 1989, No. 948, § 2; 
1989 (3rd Ex. Sess.), No. 54, § 2; 1991, No. 
1008, § 2; 1991, No. 1098, § 2; 1991, No. 
1102, § 2; 1993, No. 1242, §§ 5, 9; 1995, 
No. 1184, § 5; 1995, No. 1353, § 1; 1997, 
No. 208, § 7; 1997, No. 1273, § 1; 1997, 
No. 1296, § 10; 1999, No. 1514, § 3. 

A.C.R.C. Notes. Acts 1995, No. 1353, 
§ 2, provided: "The provisions of this act 
shall apply to payments of alimony due 
after the effective date hereof." 

Acts 1997, No. 208, § 1, codified as 
§ 22-4-408, provided: "Legislative intent 
and purpose. The General Assembly 
hereby acknowledges that many of the 
laws relating to individuals with disabili- 
ties are antiquated, functionally out- 
moded, derogatory, ambiguous or are in- 
consistent with more recently enacted 
provisions of the law. Consequently, it is 
the intent of the General Assembly and 



the purpose of this Act to clarify the rel- 
evant chapters of Titles 1, 6, 9, 13, 14, 16, 
17, 20, 22, 23, and 27 of the Arkansas 
Code Annotated of 1987." 

Publisher's Notes. Acts 1989 (3rd Ex. 
Sess.), No. 54, § 2 is also codified as 
§ 9-10-109. 

As to jurisdiction of circuit court over 
certain proceedings, see § 9-27-306. 

Acts 1995, No. 1353 became effective 
without the Governor's signature. 

U.S. Code. The Internal Revenue 
Code, referred to in this section, is codified 
as 26 U.S.C. § 1 et seq. 

Title IV-D, referred to in this section, is 
a reference to Title IV-D of the Social 
Security Act, and is codified as 42 U.S.C. 
§ 651 et seq. 

Cross References. As to child support 
enforcement guidelines, see the Appendix 
at the end of this title. 

Failure to support, defense of insanity, 
§ 9-14-104. 

Support and maintenance of children; 
implied consent to jurisdiction, § 9-14- 
101. 

Uniform Interstate Family Support Act, 
§ 9-17-101 et seq. 



RESEARCH REFERENCES 



A.L.R. Propriety of equalizing income of 
spouses through alimony awards. 102 
A.L.R.5th 395. 

Spouse's professional degree or license 
as marital property for purposes of ali- 
mony, support, or property settlement. 3 
A.L.R.6th 447. 

Ark. L. Notes. Beard, Transfers of 
Property between Spouses and Former 
Spouses — An Overview of Income Tax 
Issues and a Suggested Analytical Ap- 
proach to Such Issues, 1990 Ark. L. Notes 
1. 



Ark. L. Rev. Bond for Child Support, 5 
Ark. L. Rev. 360. 

Divorce and Property Awards, 7 Ark. L. 
Rev. 367. 

Notes, Towery v. Towery: Has the "Flex- 
ible" Child Support Rule Lost Its Stretch?, 
39 Ark. L. Rev. 539. 

U. Ark. Little Rock L.J. Note: Duty of 
Continued Child Support Past the Age of 
Majority, 1 U. Ark. Little Rock L.J. 397. 

Hawthorne, Note: Family Law — Di- 
vorce — Constitutionality of Arkansas 



227 



DIVORCE AND ANNULMENT 



9-12-312 



Property Settlement and Alimony Stat- 
utes, 2 U. Ark. Little Rock L.J. 123. 

Shively, Survey of Family Law, 3 U. Ark. 
Little Rock L.J. 223. 

Survey of Arkansas Law, Family Law, 5 
U. Ark. Little Rock L.J. 143. 

Legislative Survey — Family Law, 8 U. 
Ark. Little Rock L.J. 577. 



Survey — Family Law, 10 U. Ark. Little 
Rock L.J. 577. 

Survey — Family Law, 11 U. Ark. Little 
Rock L.J. 215. 

Survey — Family Law, 13 U. Ark. Little 
Rock L.J. 369. 

Survey — Family Law, 14 U. Ark. Little 
Rock L.J. 371. 



CASE NOTES 



Analysis 

Constitutionality. 

In General. 

Construction. 

Applicability. 

Agreement of Parties. 

Alimony. 

— In General. 

Appeal. 

Bond. 

Child Support. 

— In General. 

— Beyond Eighteenth Birthday. 

—Chart. 

— Custody. 

— Deviation from Chart. 

— Discretion of Court. 

— Modification. 

Compliance. 

— Discretion of Court. 

— Duration. 

— Modification. 

— Specified Period of Time. 

Disability. 

Earning Capacity. 

Fault. 

Medical Attention. 

Remarriage. 

Res Judicata. 

Temporary Rehabilitative Alimony. 

Torts. 

Trusts. 

Written Findings. 

Note. — Many of the following cases were 
decided prior to the 1979 amendment 
to this section which made the statute 
gender-neutral. 

Constitutionality. 

Prior to the 1979 amendment, this sec- 
tion was undisputedly gender-based and 
therefore unconstitutional as violative of 
equal protection rights. This section, as 
amended by Acts 1979, No. 705 is gender- 



neutral rather than gender-based and 
therefore is constitutional. Sweeney v. 
Sweeney, 267 Ark. 595, 593 S.W.2d 21 
(1980), overruled in part, Day v. Day, 281 
Ark. 261, 663 S.W.2d 719 (1984). 

Unconstitutionality of this section as it 
existed prior to 1979 amendment did not 
affect the validity of alimony awarded 
prior to declaration of unconstitutionality 
since the wife's rights to alimony were 
vested by the decree of the court and not 
by the statute. Boyles v. Boyles, 268 Ark. 
120, 594 S.W.2d 17 (1980). 

Supreme Court would not consider hus- 
band's challenge to constitutionality 
where the challenge was made two years 
after the original divorce decree because 
he waited too long to assert it, even 
though this section had since been de- 
clared unconstitutional because of its gen- 
der-based classification. Schmidt v. 
Schmidt, 268 Ark. 382, 596 S.W.2d 690 
(1980). 

This section, which permits a court to 
require child support past majority while 
the child remains a high school student, is 
not unconstitutional. McFarland v. Mc- 
Farland, 318 Ark. 446, 885 S.W.2d 897 
(1994). 

In General. 

This section was not repealed by § 9-12- 
315. Williams v. Williams, 150 Ark. 319, 
234 S.W. 169(1921). 

Although wife did not plead her claim 
for alimony properly, where it was appar- 
ent on the record that throughout the 
proceeding the parties litigated the case 
with the full knowledge of wife's desire for 
alimony, the court erred in granting hus- 
band's motion to set aside the award of 
alimony. McKay v. McKay, 340 Ark. 171, 8 
S.W.3d 525 (2000). 

Construction. 

The general assembly intended the 
right of support for the wife, and children, 



9-12-312 



FAMILY LAW 



228 



to be construed in the same manner. Brun 
v. Rembert, 227 Ark. 241, 297 S.W2d 940 
(1957). 

Applicability. 

Acts 1979, No. 705, which made this 
section gender-neutral, could not be retro- 
actively applied absent clear legislative 
intent to that effect, and since there was 
no indication of such intent, the act was 
only prospective in its application. 
Sweeney v. Sweeney, 267 Ark. 595, 593 
S.W.2d 21 (1980), overruled in part, Day v. 
Day, 281 Ark. 261, 663 S.W.2d 719 (1984). 

When support has been previously set 
in a decree, a change of circumstances 
must be found before this section is appli- 
cable. McKiever v. McKiever, 305 Ark. 
321, 808 S.W2d 328 (1991). 

Agreement of Parties. 

An agreement by the mother to pay 
child support to her husband following a 
divorce was not invalid as being inequi- 
table and contrary to public policy on the 
grounds that the agreement relieved the 
father of his obligation to support his 
children since the obligation belonged to 
both parents. Barnhard v. Barnhard, 252 
Ark. 167, 477 S.W2d 845 (1972). 

Power of a court to modify a decree for 
the support of minor children cannot be 
defeated by an agreement between the 
parties, even if incorporated in the decree. 
Williams v. Williams, 253 Ark. 842, 489 
S.W.2d 774 (1973). 

Where the final decree of divorce found 
that the parties had agreed that one-third 
of the personal property and crops 
amounted to a certain sum and an order 
was entered awarding that amount to the 
wife, the husband had no grounds to com- 
plain that the division of personal prop- 
erty was not exactly one-third. Wilson v. 
Wilson, 270 Ark. 485, 606 S.W.2d 56 
(1980). 

The trial court was not bound by the 
property settlement agreement as to ali- 
mony because the court has the authority 
to make an initial award of alimony when 
a divorce decree is entered. Womack v. 
Womack, 16 Ark. App. 108, 697 S.W.2d 
930 (1985). 

Prior to 1987, agreements between 
former spouses reducing the amount of 
child support payments did not bind the 
court, but the court could recognize such 
an agreement (1) if the agreement was 



supported by a valid consideration, or (2) 
if it were inequitable to do otherwise, thus 
where the mother gave up the right to 
32% of the father's income as previously 
ordered but gained an increase in the 
fixed amount of support from $200.00 to 
$250.00 per month over a period of time 
there was valid consideration and the 
chancellor did not err in recognizing the 
agreement as to the amount of arrearages 
due before the 1987 amendment to § 9- 
12-314. Sullivan v. Edens, 304 Ark. 133, 
801 S.W.2d 32 (1990), superseded by stat- 
ute as stated in, Johnson v. Lilly, 308 Ark. 
201, 823 S.W2d 883 (1992), superseded by 
statute as stated in, Branch v. Carter, 54 
Ark. App. 70, 923 S.W2d 874 (1996). 

Alimony. 

— In General. 

The amount of support must always 
depend upon the particular facts in each 
case, such as husband's earnings and abil- 
ity to pay as well as the needs of the wife. 
Dean v. Dean, 222 Ark. 219, 258 S.W2d 54 
(1953). 

Where property awards were sufficient 
wife was not entitled to alimony. Brimson 
v. Brimson, 227 Ark. 1045, 304 S.W2d 935 
(1957). 

Fact that wife has more income than 
husband does not, within itself, preclude 
her right of recovery, though the fact that 
a wife has more income than the husband 
may be taken into consideration in mak- 
ing an award. White v. White, 228 Ark. 
732, 310 S.W2d 216 (1958). 

Chancery courts have the power to 
grant the wife, as a part of her alimony, an 
interest in her husband's real property 
where he secures the divorce. Cook v. 
Cook, 233 Ark. 961, 349 S.W.2d 809 
(1961). 

When awarding alimony, the chancellor 
should give proper consideration to (1) the 
financial condition of the parties such as 
the husband's ability to pay, the wife's 
financial needs, and the wife's ability to 
support herself; (2) the station in life of 
the parties, that is, the manner and style 
of living to which the wife has become 
accustomed; and (3) the character of the 
parties bearing on the cause of the sepa- 
ration. Sutton v. Sutton, 266 Ark. 451, 587 
S.W.2d 67 (1979). 

A decree for alimony is binding and 
conclusive on the parties as to the amount 



229 



DIVORCE AND ANNULMENT 



9-12-312 



of alimony and as to all conditions or facts 
existing when it was rendered. Boyles v. 
Boyles, 268 Ark. 120, 594 S.W.2d 17 
(1980). 

Section 9-12-301 allows independent 
proceeding for the division of marital 
property or alimony when neither the di- 
vision nor alimony could have been con- 
sidered in the divorce action. Woods v. 
Woods, 285 Ark. 175, 686 S.W2d 387 
(1985). 

If either spouse is entitled to alimony, 
the chancellor must comply with this sec- 
tion by making that decision when the 
decree is entered. If circumstances pre- 
vent the spouse who is to pay the alimony 
from being able to do so, then the court 
may recite that fact and decline to award 
a specific amount; thereafter, if circum- 
stances change in a way that will permit 
the payment of alimony, the party who has 
been determined to be entitled to it may 
petition the court. Grady v. Grady, 295 
Ark. 94, 747 S.W2d 77 (1988). 

Where chancellor's order said alimony 
award was not a distribution of marital 
property or given in lieu of such a distri- 
bution, but it then referred to the discrep- 
ancy in income which would result from 
the difference in profit potential between 
two properties, reversal of the award gave 
the chancellor appropriate flexibility in 
reconsidering the distribution of marital 
property, if he chose to do so, rather than 
readopt the unequal distribution with an 
explanation as § 9-12-315 requires. Har- 
vey v. Harvey, 295 Ark. 102, 747 S.W2d 89 
(1988). 

The ability of a party to pay and the 
need of the other party are primary fac- 
tors to be considered in awarding alimony. 
Burns v. Burns, 312 Ark. 61, 847 S.W.2d 
23 (1993). 

Chancellor abused his discretion in fail- 
ing to award husband alimony, where 
marriage was of long duration, husband 
was unemployed, without independent fi- 
nancial means, in declining health and 
ordered to sell farm he had been operat- 
ing, and wife had a secure job, was benefi- 
ciary of a trust fund, retained the main 
instrumentality enabling her to earn her 
livelihood and in better health than hus- 
band. Mearns v. Mearns, 58 Ark. App. 42, 
946 S.W.2d 188 (1997). 

The statute is not determinative with 
regard to the termination of alimony pro- 
vided for in an incorporated agreement. 



Rockefeller v. Rockefeller, 335 Ark. 145, 
980 S.W.2d 255 (1998). 

Appeal. 

Husband in appeal from divorce action 
has no standing to raise any question 
about the constitutionality of allowing ali- 
mony and attorney's fees where no allow- 
ance was made. McNew v. McNew, 262 
Ark. 567, 559 S.W2d 155 (1977). 

Appellant had standing to challenge the 
constitutionality of this section where he 
was financially obligated to his wife under 
decree rendered pursuant to this statute. 
Sweeney v. Sweeney, 267 Ark. 595, 593 
S.W.2d 21 (1980), overruled in part, Day v. 
Day, 281 Ark. 261, 663 S.W2d 719 (1984). 

Indebtedness which spouse was re- 
quired to pay as maintenance and support 
not dischargeable under 11 U.S.C. 
§ 35(a)(7) in bankruptcy. Barker v. 
Barker, 271 Ark. 956, 611 S.W2d 787 
(1981). 

Bond. 

There is no language in this section 
which authorizes the seizure of one's prop- 
erty without limitation under the guise of 
a bond; accordingly, one spouse in a di- 
vorce action was not entitled to have all of 
the other spouse's property impounded as 
a bond under this section, particularly 
where the second spouse had never been 
ordered nor attempted to make a bond. 
Warren v. Warren, 273 Ark. 528, 623 
S.W.2d 813 (1981) (supplemental opinion). 

Child Support. 

Circuit court did not clearly err in find- 
ing that the husband's income for child- 
support purposes was that reflected on his 
tax returns; it was clear that the hus- 
band's ownership in the limited partner- 
ship was a significant portion of his net 
worth; thus, that ownership interest 
would be a proper consideration. Brown v. 
Brown, 373 Ark. 333, 284 S.W3d 17 
(2008). 

Court abused its discretion in failing to 
order parents to pay child support to a 
grandmother who was awarded custody of 
their child at the time their divorce was 
granted, as required by subdivision (a)(1) 
of this section, where the court had ample 
evidence of the mother's income and evi- 
dence that the father was on active duty 
in the U.S. Army National Guard. Bass v. 
Weaver, 101 Ark. App. 367, 278 S.W3d 
127 (2008). 



9-12-312 



FAMILY LAW 



230 



— In General. 

Where chancery court did not pass on 
the question of support of the children, 
but merely denied the wife alimony, chil- 
dren are not barred from bringing suit 
against their father, and whether they 
would recover or not would depend upon 
all the facts and circumstances. Upchurch 
v. Upchurch, 196 Ark. 324, 117 S.W2d 339 
(1938). 

It is duty of father to support minor 
child even though custody is awarded to 
mother, and misconduct of mother cannot 
be allowed to prejudice the child's right to 
support. Reiterv. Reiter, 225 Ark. 157, 278 
S.W2d 644 (1955). 

Order for the payment of allowances for 
child support is not a final decree upon 
which an execution may be issued, or 
which might become a lien on real estate. 
Brun v. Rembert, 227 Ark. 241, 297 
S.W.2d 940 (1957). 

Action to recover delinquent child sup- 
port payments was not timely where in- 
stituted more than five years after the last 
payment became due. Brun v. Rembert, 
227 Ark. 241, 297 S.W2d 940 (1957). 

A mother's obligations to her child for 
support do not come into existence only 
when the father is impoverished. Barn- 
hard v. Barnhard, 252 Ark. 167, 477 
S.W2d 845 (1972). 

The power of a chancery court to order 
child support payments under this section 
does not create in the court an implied 
authority to impose a lien on the other 
spouse's property for future child support, 
and equity courts have no inherent au- 
thority to grant one. Warren v. Warren, 
273 Ark. 528, 623 S.W2d 813 (1981) 
(supplemental opinion). 

To declare that Perkins v. Perkins, 15 
Ark. App. 82, 690 S.W2d 356 (1985), or 
this section effectively eliminates the ne- 
cessity of the need for equity or a chancel- 
lor in child support cases is utterly with- 
out foundation. Borden v. Borden, 20 Ark. 
App. 52, 724 S.W.2d 181 (1987). 

While there is no specific provision iden- 
tifying "earning capacity" as an element to 
be considered when ordering child sup- 
port, it is nevertheless recognized as a 
factor. In determining the amount to be 
contributed for child support, the chancel- 
lor should consider the needs of the chil- 
dren, the resources of each parent, their 
respective ages, earning capacities, in- 
comes and indebtedness, state of health, 



future prospects, and any other factors 
that will aid the court in reaching a just 
and equitable result. Grady v. Grady, 295 
Ark. 94, 747 S.W2d 77 (1988). 

Where custodial parent did not inter- 
fere with former spouse's visitation rights, 
nor defy the divorce decree, but did delay 
in pursuing her rights to obtain judgment 
for the accrued child support payments, 
delay did not defeat right to accrued child 
support. Cunningham v. Cunningham, 
297 Ark. 377, 761 S.W2d 941 (1988). 

The list of factors set out by the Su- 
preme Court for determining whether an 
amount specified by the chart is unjust or 
inappropriate, is not exclusive. Stewart v. 
Winfrey, 308 Ark. 277, 824 S.W2d 373 
(1992). 

The language "other income or assets 
available to support the child from what- 
ever source" is intended to expand, not 
restrict, the sources of funds to be consid- 
ered in setting child support. Belue v. 
Belue, 38 Ark. App. 81, 828 S.W.2d 855 
(1992). 

The chancellor correctly based the 
amount of child support ordered on a 
monthly income which included noncusto- 
dial Veterans' Administration disability 
benefits. Belue v. Belue, 38 Ark. App. 81, 
828 S.W2d 855 (1992). 

In a divorce action, a trial court did not 
err when it relied on a former husband's 
total net income and averaged the hus- 
band's salary to determine income for 
child support payments, which were pre- 
sumptively proper under the guidelines 
and family support chart of subdivision 
(a)(2) of this section and Ark. Sup. Ct. 
Admin. Order No. 10. Taylor v. Taylor, 369 
Ark. 31, 250 S.W.3d 232 (2007). 

— Beyond Eighteenth Birthday. 

Even after a handicapped child reaches 
age 18, a parent should provide further 
support for educational purposes to pre- 
pare the child to pay his medical bills, and 
support himself if the financial condition 
of the parent allows. Elkins v. Elkins, 262 
Ark. 63, 553 S.W.2d 34 (1977). 

Subdivision (a)(5)(A) of this section gave 
the chancellor the authority to direct non- 
custodial parent to continue making pay- 
ments on the custodial parent's house 
until the parties' child graduated from 
high school. Keesee v. Keesee, 48 Ark. 
App. 113, 891 S.W2d 70 (1995). 



231 



DIVORCE AND ANNULMENT 



9-12-312 



—Chart. 

Courts are required to refer to chart but 
are not bound to set support payments in 
accordance with exact terms thereof; de- 
gree of dependence upon chart is left to 
sound discretion of the chancellor. Thur- 
ston v. Pinkstaff, 292 Ark. 385, 730 S.W.2d 
239 (1987). 

The Family Support Chart is to be used 
as a guide and is not intended to be 
binding. Borden v. Borden, 20 Ark. App. 
52, 724 S.W.2d 181 (1987). 

Award of support based upon Family 
Support Chart was not abuse of discre- 
tion. Borden v. Borden, 20 Ark. App. 52, 
724 S.W.2d 181 (1987); Barnes v. Barnes, 
311 Ark. 287, 843 S.W.2d 835 (1992). 

Although the chancellor was not re- 
quired to use the family support chart in 
setting child support the fact that his 
order of support was in conformity with 
the chart indicated that it was not errone- 
ous. Freeman v. Freeman, 29 Ark. App. 
137, 778 S.W.2d 222 (1989) (preceding 
decisions prior to 1989 amendment by No. 
948). 

Where chancellor made specific findings 
on the record spelling out why the support 
chart was inappropriate, considering all 
relevant factors, it was sufficient to rebut 
the presumption that the amount of child 
support calculated pursuant to the family 
support chart was correct. Scroggins v. 
Scroggins, 302 Ark. 362, 790 S.W.2d 157 
(1990). 

Reference to the Family Support Chart 
is mandatory, and the chart itself estab- 
lishes a rebuttable presumption of the 
appropriate amount which can only be 
explained away by written findings stat- 
ing why the chart amount is unjust or 
inappropriate. Black v. Black, 306 Ark. 
209, 812 S.W.2d 480 (1991). 

Where the chancellor's order failed to 
indicate whether he indeed referred to the 
chart in making his decision, he projected 
a support chart amount premised on the 
defendant's monthly income, and he pre- 
sumed that amount to be correct, the case 
was remanded for the chart to be consid- 
ered. Black v. Black, 306 Ark. 209, 812 
S.W2d 480 (1991). 

While there is a rebuttable presumption 
that the amount of support according to 
the chart is correct, the chancellor in his 
discretion is not entirely precluded from 
adjusting the amount as deemed war- 
ranted under the facts of a particular case. 



However, when deviating from the chart, 
the chancellor must explain his or her 
reasoning by the entry of a written finding 
or by making a specific finding on the 
record. Waldon v. Waldon, 34 Ark. App. 
118, 806 S.W2d 387 (1991). 

Where the end result reached by the 
chancellor represented only a slight devia- 
tion from the chart amount, the findings 
made by the chancellor on the record were 
sufficient to rebut the presumption that 
the amount of support according to the 
chart was correct. Waldon v. Waldon, 34 
Ark. App. 118, 806 S.W2d 387 (1991). 

The child support chart and the criteria 
used for deviating from it are not manda- 
tory, but there is a rebuttable presump- 
tion that the amount specified in the chart 
is the appropriate amount; applying the 
specific chart amounts is not mandatory if 
it would be unjust or inequitable, and if 
written findings are made to that effect. 
Stewart v. Winfrey, 308 Ark. 277, 824 
S.W2d 373 (1992). 

The child support chart specifically 
takes into account payments made under 
court order to support other children, and 
allows these payments to be deducted 
from weekly take home pay. The chart 
does not refer to support of children not 
under court order, but a payor spouse's 
ability to pay can be considered, and nec- 
essarily includes other children the par- 
ent is legally obligated to support. Stewart 
v. Winfrey, 308 Ark. 277, 824 S.W2d 373 
(1992). 

Given the presumption that the chart 
amount is reasonable, it is incumbent on 
the trial courts to give a fuller explanation 
of their reasons for rejecting the chart; it 
was not sufficient to state merely that the 
amount was "unreasonable." Cochran v. 
Cochran, 309 Ark. 604, 832 S.W2d 252 
(1992). 

Where there was no evidence regarding 
defendant's weekly take home pay during 
the relevant time period, the support was 
set at the minimum level required of an 
unemployed person. Barnes v. Barnes, 311 
Ark. 287, 843 S.W2d 835 (1992). 

Where the chancellor found that the 
chart called for $51.00 per week child 
support, which would quadruple the non- 
custodial parent's payments, and consid- 
ering his expenses, would be devastating 
to increase by four times the amount of his 
support payments, an increase of the 
weekly payment to $30.00 instead of 



9-12-312 



FAMILY LAW 



232 



$51.00 followed the requirements, and ap- 
plied the rules set out in the Supreme 
Court's per curiams by avoiding a modifi- 
cation that would work undue hardship on 
that party. Howard v. Wisemon, 38 Ark. 
App. 27, 826 S.W.2d 314 (1992). 

Reference to the child support chart is 
mandatory. Jones v. Jones, 43 Ark. App. 7, 
858 S.W.2d 130 (1993). 

The child support chart itself estab- 
lishes a rebuttable presumption of the 
appropriate amount which can only be 
explained away by written findings stat- 
ing why the chart amount is unjust or 
inappropriate. Jones v. Jones, 43 Ark. 
App. 7, 858 S.W.2d 130 (1993). 

The presumption that the child support 
chart correctly estimates support may be 
overcome if the chancellor determines, 
upon consideration of all the relevant fac- 
tors, that the chart amount is unjust or 
inappropriate; the relevant factors in- 
clude food, shelter, utilities, clothing, 
medical and education expenses, accus- 
tomed standard of living, insurance, and 
transportation expenses. Jones v. Jones, 
43 Ark. App. 7, 858 S.W.2d 130 (1993). 

The family support chart is structured 
so that the amount of support per child 
decreases in proportion to the number of 
added dependents. Arkansas Dep't of Hu- 
man Servs. Child Support Enforcement 
Unit v. Forte, 46 Ark. App. 115, 877 S.W.2d 
949 (1994). 

Chancellor erroneously applied father's 
income figure of $270.00 to the chart un- 
der the column for three dependents, 
which showed support of $101.00, and 
then divided that figure by three, to arrive 
at support of $35.00 for the one child 
before the court; the chart should be ap- 
plied to the child that is before the court, 
and it was improper for the chancellor to 
have applied the chart based on three 
dependents and then divide that amount 
by three. Arkansas Dep't of Human Servs. 
Child Support Enforcement Unit v. Forte, 
46 Ark. App. 115, 877 S.W.2d 949 (1994). 

Reference to the family support chart is 
mandatory, and the chart itself estab- 
lishes a rebuttable presumption of the 
appropriate amount which can only be 
explained away by express findings stat- 
ing why the chart amount is unjust or 
inappropriate. McJunkins v. Lemons, 52 
Ark. App. 1, 913 S.W.2d 306 (1996). 

Where the chancellor failed to make any 
reference to the family chart in his com- 



ments or the order, the chancellor failed to 
comply with subdivision (a)(2) of this sec- 
tion and the award was improper. Mc- 
Junkins v. Lemons, 52 Ark. App. 1, 913 
S.W.2d 306 (1996). 

Given the evidence of the father's afflu- 
ence, exceptional generosity to his girl- 
friend and sisters, and extravagant lif- 
estyle, the trial judge did not abuse his 
discretion in setting child support in the 
divorce proceeding in accordance with the 
presumptive amount derived from the 
family support chart. Williams v. Will- 
iams, 82 Ark. App. 294, 108 S.W3d 629 
(2003). 

Father was properly ordered to pay a 
percentage of his salary as child support, 
pursuant to the child support guidelines, 
where his income exceeded the amount of 
income shown on the family support chart 
as the child was entitled to a lifestyle 
similar to that of his father's and said 
monies were going toward the child's col- 
lege education; thus, the trial court did 
not abuse its discretion in not deviating 
from the family-support guidelines and in 
not ordering father to pay less than 15 
percent of his monthly income in child 
support. Ceola v. Burnham, 84 Ark. App. 
269, 139 S.W3d 150 (2003). 

— Custody. 

If the divorce decree grants the custody 
of a minor child to the mother but makes 
no provision for the child's support and 
the mother thereafter supports the child 
and supplies it with necessaries, the fa- 
ther, if financially able, should repay the 
mother for the reasonable value of the 
support or necessaries thus furnished. 
Wilder v. Garner, 235 Ark. 400, 360 S.W2d 
192 (1962). 

Where parents have physical custody of 
one child each, the court should determine 
whether each parent should pay child 
support for the other child and, if not, 
should make specific findings as provided 
by subdivision (a)(2) of this section. Loni- 
gro v. Lonigro, 55 Ark. App. 253, 935 
S.W2d 284 (1996). 

— Deviation from Chart. 

Given the presumption in subdivision 
(a)(2) that the chart amount is reasonable, 
it is incumbent on the chancellor to give a 
full explanation of his reasons for reject- 
ing the chart. Roland v. Roland, 43 Ark. 
App. 60, 859 S.W.2d 654 (1993). 



233 



DIVORCE AND ANNULMENT 



9-12-312 



The chancellor did not abuse his discre- 
tion in considering father's other two ille- 
gitimate children as justification for devi- 
ating from the child support chart, even 
though father was not under a court order 
to support those children. Arkansas Dep't 
of Human Servs. Child Support Enforce- 
ment Unit v. Forte, 46 Ark. App. 115, 877 
S.W.2d 949 (1994). 

Where chancellor awarded the noncus- 
todial parent the right to claim the chil- 
dren as dependents for income tax pur- 
poses, the chancellor essentially deviated 
from the child support chart without pro- 
viding the required written findings. Fon- 
tenot v. Fontenot, 49 Ark. App. 106, 898 
S.W.2d 55 (1995). 

Chancellor's deviation from family child 
support chart without making appropri- 
ate findings of fact did not relieve parent 
of his support obligation, but child-sup- 
port issue would be remanded to chancery 
court to reconsider support obligation con- 
sistent with subdivision (a)(2) of this sec- 
tion. Mearns v. Mearns, 58 Ark. App. 42, 
946 S.W.2d 188 (1997). 

By omitting that portion of a deprecia- 
tion deduction which represented spend- 
able income to noncustodial parent with- 
out entering a specific finding on the 
record that it would be unjust or inappro- 
priate to calculate the support based on its 
inclusion, the chancellor in effect deviated 
from the child-support chart without mak- 
ing the requisite written findings. Stepp v. 
Gray, 58 Ark. App. 229, 947 S.W.2d 798 
(1997). 

The chancellor did not commit error in 
declining to deviate from the presump- 
tively correct support amount where the 
father asserted that the amount required 
by the statute exceeded what was a rea- 
sonable requirement for child support for 
a very young child and sought to prove his 
contention through cross-examination of 
the wife as to her utility bills, cost of food, 
and the costs associated with living in her 
trailer home, as well as those expenses on 
her affidavit of financial means, which 
had been prepared before the child was 
born. Smith v. Smith, 341 Ark. 590, 19 
S.W.3d 590 (2000). 

Trial court properly dismissed client's 
malpractice action even though the attor- 
ney committed malpractice by failing to 
perfect client's appeal of the trial court's 
child-support award as the client would 
not have prevailed on appeal because the 



trial court properly adhered to guidelines 
of Arkansas Family Support Chart when 
it deviated from presumptive amount; al- 
though the trial court was required to 
consider the guidelines, the court did not 
have to use the chart amount where the 
circumstances of the parties indicated an- 
other amount would be more appropriate. 
Davis v. Bland, 367 Ark. 210, 238 S.W.3d 
924 (2006). 

— Discretion of Court. 

A chancellor's finding as to child sup- 
port will not be disturbed on appeal unless 
it is shown that the chancellor abused his 
discretion. Borden v. Borden, 20 Ark. App. 
52, 724 S.W.2d 181 (1987). 

The chancellor, in his discretion, is not 
entirely precluded from adjusting the 
amount of child support as deemed war- 
ranted under the facts of a particular case. 
Jones v. Jones, 43 Ark. App. 7, 858 S.W.2d 
130 (1993). 

The amount of child support lies within 
the sound discretion of the chancellor, and 
the court will not disturb the chancellor's 
finding absent an abuse of discretion. 
Jones v. Jones, 43 Ark. App. 7, 858 S.W.2d 
130 (1993). 

Chancellor could consider father's in- 
come over thirty-one weeks instead of 
twelve weeks in order to obtain a better 
perspective of father's earnings to deter- 
mine child support award. Creson v. Cre- 
son, 53 Ark. App. 41, 917 S.W.2d 553 
(1996). 

— Modification. 

Any increase in the allowance for the 
support of children must be based upon a 
showing that conditions have changed 
since the entry of the decree of divorce. 
Haney v. Haney, 235 Ark. 60, 357 S.W.2d 
19 (1962). 

Where child support payments pursu- 
ant to written order were at variance with 
those previously announced orally by the 
chancellor, the chancellor was at liberty to 
reconsider his first conclusion. Schaefer v. 
Schaefer, 235 Ark. 870, 362 S.W2d 444 
(1962). 

Remarriage of the husband was not in 
itself sufficient change in circumstances to 
justify a reduction of child support pay- 
ments. Pults v. Pults, 236 Ark. 434, 367 
S.W2d 120 (1963). 

Change in custody constitutes a change 
in circumstances under which a court has 



9-12-312 



FAMILY LAW 



234 



the right to review and modify awards for 
support of children, increasing or reduc- 
ing the awards as warranted. Williams v. 
Williams. 253 Ark. 842. 489 S.W.2d 774 
(1973). 

Trial court always has right to review 
and modify child support payments in 
accordance with changing circumstances 
and may increase or reduce the payments 
as warranted in each case, but it is error 
to change amount of support where there 
is no evidence submitted to show a change 
in circumstances. Matters which should 
be considered in determining whether 
there has been a change in circumstances 
warranting adjustment in child support 
include remarriage of the parties, a minor 
reaching majority, change in the income 
and financial conditions of the parties, 
relocation, change of custody, debts of the 
parties, financial conditions of the parties 
and families, ability to meet current and 
future obligations, and child support 
chart. Thurston v. Pinkstaff. 292 Ark. 385, 
730 S.W.2d 239 (1987). 

It is error to change the amount of child 
support where there is no evidence sub- 
mitted to show a change in circumstances. 
Ross v. Ross. 29 Ark. App. 64. 776 S.W.2d 
834(1989). 

Chancellor's determination as to 
whether there are sufficient changed cir- 
cumstances to warrant an increase in 
child support is a finding of fact: this 
finding will not be reversed unless it is 
clearlv erroneous. Hunt v. Hunt. 40 Ark. 
App. 166. 842 S.W.2d 470 - 1992'. 

Because this section and § 9-14-234 
specifically provide that any decree which 
contains a provision for the payment of 
child support shall be a final judgment 
until either party moves to modify the 
order, where father did not file his petition 
to reduce support until over a year after 
the decree was entered, the unpaid sup- 
port accrued as originally ordered, until 
the motion to modify the judgment was 
filed. Burnett v. Burnett. 313 Ark. 599. 
855 S.W.2d 952 '1993). 

Whether provisions regarding child 
support are in a divorce decree or property 
settlement contract, the court always re- 
tains authority and jurisdiction to modify 
child support obligations. Warren v. Ko- 
rdsmeier. 56 Ark. App. 52. 938 S.W.2d 237 
(1997). 

A child-support obligation cannot be 
modified based solelv on the current chart 



amount without there also being proof of a 
change in circumstances, and where the 
appellant failed to introduce evidence of 
appellee's income when the order was 
entered, a change in circumstances could 
not be shown. Ritchev v. Frazier, 57 Ark. 
App. 92. 940 S.W.2d 892 1 1997). 

Material change of circumstances oc- 
curred when the child's custody changed 
from the mother to the father and the 
child began attending a milit ary academy; 
thus, the trial court was not bound by the 
one-half division of education expenses it 
directed in its first order, which contem- 
plated the child attending a different 
school. Hvden v. Hvden. 85 Ark. App. 132, 
148S.W.3d 748(2004i. 

Two large judgments received by father 
constituted "income** under Ark. Sup. Ct. 
Admin. Order No. 10 and, thus, the trial 
court did not err by ordering the father to 
pay a percentage of the judgments as a 
one-time child support obligation; it was 
irrelevant to the modification proceeding 
that the father had agreed to repay dis- 
charged bankruptcy debts, and the fa- 
ther's monthly obligation was not in- 
creased due to the judgments. Evans v. 
Tillerv. 361 Ark. 63. 204 S.W.3d 547 
• 2005'. 

Father was allowed to claim the young- 
est child as a dependent and receive a tax 
exemption where the circuit court deter- 
mined that the mother had not been em- 
ployed since the birth of the last child and 
that the support of 84.653.00 per month 
for the child in the mother's custody was 
more than 50% of the support required to 
maintain the child in her lifestyle. Hill v. 
Kelly. 368 Ark. 200. 243 S.W.3d 886 
•2006'. 

In reducing father's child support obli- 
gation from $1000 to S525 per month, the 
trial judge specifically noted that the 
child's accustomed life style was being 
accommodated and that the father was in 
fact earning no income whatsoever: the 
chart amount was not deemed to be unjust 
or inappropriate based upon the criteria 
applied to the facts, and the trial court did 
not err in setting an equitable amount of 
child support. McKinnev v. McKinney, 94 
Ark. App. 100, 226 S.W T .3d 37 (2006). 

Compliance. 

Reference to the family support chart is 
mandatory: although a trial court's order 
did not specifically reference the family 



235 



DIVORCE AND ANNULMENT 



9-12-312 



support chart, the appellate court held 
that the trial judge in his bench ruling 
referenced the chart by ordering the incar- 
cerated father to pay the minimum 
amount. Allen v. Allen, 82 Ark. App. 42, 
110 S.W.3d 772 (2003). 

— Discretion of Court. 

In divorce action, allowance or disallow- 
ance of alimony was in the chancellor's 
discretion after consideration of all cir- 
cumstances. Upchurch v. Upchurch, 196 
Ark. 324, 117 S.W.2d 339 (1938). 

Where there was no valid statute in 
effect at the time to sustain the awarding 
of alimony, the chancellor, within the ex- 
ercise of inherent power and sound discre- 
tion, could have awarded alimony to the 
wife or husband as was justified by the 
facts and circumstances, in order to pre- 
vent harsh and inequitable results. 
Sweeney v. Sweeney, 267 Ark. 595, 593 
S.W.2d 21 (1980), overruled in part, Day v. 
Day, 281 Ark. 261, 663 S.W.2d 719 (1984). 

The award of alimony in a divorce ac- 
tion is not mandatory, but is a question 
which addresses itself to the sound discre- 
tion of the chancellor, and the chancellor's 
decision will not be disturbed absent a 
clear abuse of that discretion. Lofton v. 
Lofton, 23 Ark. App. 203, 745 S.W.2d 635 
(1988); Boggs v. Boggs, 26 Ark. App. 188, 
761 S.W.2d 956 (1988); Busby v. Busby, 39 
Ark. App. 108, 840 S.W.2d 195 (1992). 

An award of alimony lies within the 
discretion of the chancellor and will not be 
reversed absent an abuse of that discre- 
tion. Burns v. Burns, 312 Ark. 61, 847 
S.W.2d 23 (1993). 

Where party seeks award of alimony 
and greater share of marital property, 
alimony and property settlements are 
complimentary devices that a chancery 
court must employ to make the dissolu- 
tion of a marriage of long standing as 
equitable as possible. Mearns v. Mearns, 
58 Ark. App. 42, 946 S.W2d 188 (1997). 

— Duration. 

The chancellor erred when he ordered 
that alimony would terminate only upon 
the death of either party and that alimony 
would not terminate upon the remarriage 
of the recipient wife where his stated 
purpose for such award was to substitute 
alimony for an interest in the husband's 
unvested military retirement. Holaway v. 
Holaway, 70 Ark. App. 240, 16 S.W3d 302 
(2000). 



— Modification. 

When a decree is entered fixing and 
allowing alimony for the support and 
maintenance of the wife, that decree lim- 
its and defines the extent of the husband's 
obligation in that respect, but the allow- 
ance is always subject to modification by 
the court to meet the changed situation 
and conditions of the parties in interest. 
Pledger v. Pledger, 199 Ark. 604, 135 
S.W.2d 851 (1940). 

Where spouse ordered to pay alimony 
has the ability to generate substantial 
earnings and a past history of doing so, 
but, at the time of the divorce, is engaged 
in lesser employment, the trial court need 
not award a token amount of alimony in 
the decree in order to reserve to the other 
spouse the right to petition for a reason- 
able amount of alimony when the circum- 
stances permit. Mulling v. Mulling, 323 
Ark. 88, 912 S.W2d 934 (1996). 

— Specified Period of Time. 

The chancery court was not wrong in 
not extending alimony until 56-year-old 
wife was eligible for social security, rather 
than just for five years; where the wife 
had marketable skills, and therefore had 
the means to support herself, that fact 
joined with the alimony award and other 
property given her in the divorce was 
evidence that the chancery court weighed 
the relevant circumstances, and acted 
well within its discretion in awarding ali- 
mony "for a specified period of time." Du- 
charme v. Ducharme, 316 Ark. 482, 872 
S.W2d 392 (1994). 

Disability. 

Although the Guidelines for Child Sup- 
port Enforcement do not specifically ad- 
dress the situation where a disabled par- 
ent is required to provide support for an 
adult handicapped child who also receives 
disability income in his or her own right, 
the guidelines do provide that for Social 
Security Disability recipients, the court 
should consider the amount of any sepa- 
rate awards made to the disability recipi- 
ent's spouse and/or children. Kimbrell v. 
Kimbrell, 47 Ark. App. 56, 884 S.W.2d 268 
(1994). 

A custodial parent, who is himself dis- 
abled, is still obligated by subdivision 
(a)(5)(B) of this section to support a dis- 
abled child. Kimbrell v. Kimbrell, 47 Ark. 
App. 56, 884 S.W2d 268 (1994). 



9-12-312 



FAMILY LAW 



236 



Earning Capacity. 

The court may consider the fact that a 
supporting spouse voluntarily changes 
employment so as to lessen earning capac- 
ity and, in turn, the ability to pay alimony 
and child support. The court may, in 
proper circumstances, impute an income 
to a spouse according to what could be 
earned by the use of his or her best efforts 
to gain employment suitable to his or her 
capabilities. Grady v. Grady, 295 Ark. 94, 
747 S.W.2d 77 (1988). 

As there could be found no Arkansas 
case holding that prior tax refunds paid 
months before a divorce hearing must be 
included in income, there was no error in 
the chancellor's refusal to include receipt 
of one-half of an income tax refund in 
calculating income. Jones v. Jones, 43 Ark. 
App. 7, 858 S.W.2d 130 (1993). 

Award of alimony to the wife was prop- 
erly denied where the husband was 64 
years old and in relatively poor health, 
unable to do much farm work other than 
bookkeeping; the wife was 58 years old, in 
good health, and was currently employed 
managing an RV park. Powell v. Powell, 
82 Ark. App. 17, 110 S.W.3d 290 (2003). 

In an action to increase husband's child 
support obligation, the trial court did not 
err in allowing the husband to claim the 
tax deduction for the parties' daughter 
because the trial court performed the re- 
quired weighing and made the required 
findings when it stated that the benefit to 
the husband substantially outweighed the 
benefit to the wife. White v. White, 95 Ark. 
App. 274, 236 S.W.3d 540 (2006). 

Fault. 

Fault is not a factor in deciding whether 
to award alimony unless it relates to need 
or the ability to pay. Burns v. Burns, 312 
Ark. 61, 847 S.W2d 23 (1993). 

Eighty-five-year-old former husband 
was ordered to pay alimony to his former 
wife based on evidence that showed he 
used the wife's salary to fund his extra- 
marital relationships with several women 
since the diversion of funds related to the 
wife's need, and the amount awarded was 
within his ability to pay since he was still 
employed. Dykman v. Dykman, 98 Ark. 
App. 145, 253 S.W3d 23 (2007). 

Medical Attention. 

The term "support and maintenance" 
includes necessary medical attention. 



Pledger v. Pledger, 199 Ark. 604, 135 
S.W2d 851 (1940). 

Evidence sufficient to show that court 
should have modified decree so as to re- 
quire husband to pay his wife's doctor, 
hospital, nursing, and medical bills. 
Pledger v. Pledger, 199 Ark. 604, 135 
S.W2d 851 (1940). 

Remarriage. 

Remarriage of the divorced wife is suf- 
ficient grounds to entitle the husband to a 
termination of alimony payments upon 
proper application to the court granting 
the original decree but the remarriage 
does not of itself terminate the obligation. 
Wear v. Boydstone, 230 Ark. 580, 324 
S.W2d 337 (1959). 

Subsequent judgments on original de- 
cree were not void because of remarriage 
of wife but husband was entitled to pro- 
ceed for modification of judgments where 
it did not appear that chancellor was 
aware of wife's remarriage at the time he 
allowed the judgments. Wear v. Boyd- 
stone, 230 Ark. 580, 324 S.W2d 337 (1959) 
(preceding decisions prior to 1989 amend- 
ment by No. 100). 

Subdivision (a)(1) of this section clearly 
requires that remarriage of the person 
who is awarded alimony must be specifi- 
cally mentioned in the divorce decree or 
alimony agreement if the automatic ces- 
sation of liability for alimony is not to 
occur upon such event. Smith v. Smith, 41 
Ark. App. 29, 848 S.W.2d 428 (1993). 

Former wife's cohabitation with an- 
other man could not be viewed as the 
equivalent to marriage for purposes of 
determining whether she was entitled to 
continue receiving alimony payments 
from the former husband where there was 
no evidence that the former wife had as- 
sumed the man's name, that she held 
herself out publicly as his wife, or that he 
had assumed responsibility for her care 
and maintenance. Herman v. Herman, 
335 Ark. 36, 977 S.W2d 209 (1998). 

By using the words "unless otherwise . . . 
agreed by the parties," the General As- 
sembly clearly indicated that it is permis- 
sible for a divorcing couple to contractu- 
ally agree to continue alimony even after 
one of the parties has children with an- 
other person and is obligated to pay child 
support. Rockefeller v. Rockefeller, 335 
Ark. 145, 980 S.W2d 255 (1998). 

Husband's argument that the wife was 
not entitled to alimony payments under 



237 



DIVORCE AND ANNULMENT 



9-12-312 



subsection (a) of this section because she 
had remarried was rejected where the 
payments at issue were properly charac- 
terized as periodic distributions of marital 
property and not alimony. Surratt v. Sur- 
ratt, 85 Ark. App. 267, 148 S.W.3d 761 
(2004). 

In a domestic relations case, the trial 
court did not err in refusing to terminate 
an ex-husband's alimony obligation upon 
his ex-wife's remarriage pursuant to this 
section because the parties had contracted 
for the ex-husband's alimony obligation to 
continue beyond the ex-wife's remarriage, 
so the statute's automatic termination 
provision regarding remarriage was not 
applicable. Artman v. Hoy, 370 Ark. 131, 
257 S.W.3d 864 (2007). 

Res Judicata. 

Where a judgment is based upon rights 
conferred by a statute later declared un- 
constitutional, the doctrine of res judicata 
bars the relitigation of the case in which it 
was rendered, or the reopening of the 
judgment after it has become final. Boyles 
v. Boyles, 268 Ark. 120, 594 S.W.2d 17 
(1980). 

Where husband waited four years after 
the divorce decree to argue that this sec- 
tion was violative of the equal protection 
clause of the Fourteenth Amendment, the 
husband plainly did not raise nor pursue 
the constitutional issue with diligence and 
the matter was res judicata. Mensch v. 
Mensch, 268 Ark. 1022, 597 S.W2d 859 
(Ct. App. 1980) (decision prior to 1979 
amendment). 

Temporary Rehabilitative Alimony. 

An award of temporary rehabilitative 
alimony, which required the husband to 
pay for tuition, books, and fees for the wife 
to attend college for up to five years, was 
not an abuse of discretion, notwithstand- 
ing the wife's assertion that she was the 
mother of four children, had a full time 
job, and did not have time to go to school, 
where the wife was a school teacher and 
earned only slightly less than the hus- 
band, and the husband paid more child 
support than the support chart indicated, 
even though he had custody of one of the 
children. Myrick v. Myrick, 339 Ark. 1, 2 
S.W.3d 60 (1999). 

Trial court's ruling that estate was li- 
able for husband's temporary alimony 
payments was reversed as, under subsec- 



tion (b) of this section, the husband's obli- 
gation for the payment of temporary ali- 
mony terminated upon his death; 
however, the estate was liable for the 
amount the husband was in arrears up to 
the point of his death. Estate of Carpenter 
v. Carpenter, 93 Ark. App. 441, 220 S.W3d 
263 (2005). 

Torts. 

A spouse involved in a divorce, having a 
cause of action in tort against his or her 
spouse, is not required to bring that action 
in the divorce case and can pursue the 
claim in circuit court. Cater v. Cater, 311 
Ark. 627, 846 S.W2d 173 (1993). 

Trusts. 

The statute does not give a chancellor 
the authority to establish a trust for a 
child with the support funds paid out of 
the amount established for child support. 
Smith v. Smith, 341 Ark. 590, 19 S.W3d 
590 (2000). 

Written Findings. 

Where noncustodial parent's income ex- 
ceeds the amount for which there is a 
specific entry on the child-support chart, 
necessitating a separate calculation made 
in accordance with the child-support 
guidelines, the same imperative applies 
regarding written findings for deviation 
from the level of support indicated by the 
guidelines. Stepp v. Gray, 58 Ark. App. 
229, 947 S.W2d 798 (1997). 

Trial court erred in awarding to the 
mother, the noncustodial parent, the right 
to claim a child for tax exemption pur- 
poses without providing the requisite 
written or specific findings to support the 
decision; an award of a tax exemption to a 
noncustodial parent resulted in a devia- 
tion from the child support chart. Dumas 
v. Tucker, 82 Ark. App. 173, 119 S.W3d 
516 (2003). 

Where the husband's income of 
$540,217.00 was reduced to an annual 
salary of $476,171.00 and the trial court 
deviated downward from the family sup- 
port chart in reducing his child support to 
$7607.75 a month, the award was re- 
versed because the trial court failed to 
make specific findings supporting a devia- 
tion. Morehouse v. Lawson, 94 Ark. App. 
374, 231 S.W3d 86 (2006). 

Cited: Law v. Law, 248 Ark. 894, 455 
S.W2d 854 (1970); Russell v. Russell, 275 
Ark. 193, 628 S.W2d 315 (1982); Reynolds 



9-12-313 



FAMILY LAW 



238 



v. Reynolds, 299 Ark. 200, 771 S.W.2d 764 
(1989); Roe v. State, 304 Ark. 673, 804 
S.W.2d 708 (1991); Green v. Bell, 308 Ark. 
473, 826 S.W.2d 226 (1992); Heflin v. Bell, 
52 Ark. App. 201, 916 S.W.2d 769 (1996); 
Sanderson v. Harris, 330 Ark. 741, 957 



S.W.2d 685 (1997); Guest v. San Pedro, 70 
Ark. App. 389, 19 S.W.3d 62 (2000); Weir v. 
Phillips, 75 Ark. App. 208, 55 S.W3d 804 
(2001); Johnson v. Cotton- Johnson, 88 
Ark. App. 67, 194 S.W.3d 806 (2004). 



9-12-313. Enforcement of separation agreements and decrees of 
court. 

Courts of equity may enforce the performance of written agreements 
between husband and wife made and entered into in contemplation of 
either separation or divorce and decrees or orders for alimony and 
maintenance by sequestration of the property of either party, or that of 
his or her sureties, or by such other lawful ways and means, including 
equitable garnishments or contempt proceedings, as are in conformity 
with rules and practices of courts of equity 



History. Rev. Stat., ch. 51, § 11; C. & 
M. Dig., § 3509; Pope's Dig., § 4391; Acts 



1941, No. 290, § 1; 1979, No. 705, § 4; 
A.S.A. 1947, § 34-1212. 



CASE NOTES 



Analyses 

Ability to Pay. 

Agreements Between Parties. 

Bankruptcy. 

Decrees or Orders. 

Jurisdiction. 

No Binding Agreement. 

Security for Payment. 

Ability to Pay. 

One held under order of the chancery 
court in a divorce which directs that he be 
detained in custody until he has executed 
a bond for performance of the court's or- 
ders in regard to the payment of alimony 
and suit money will not be released on 
habeas corpus in the circuit court at least 
if there is no showing that he is unable to 
perform the judgment of the chancery 
court. Ex parte Caple, 81 Ark. 504, 99 S.W. 
830(1907). 

Court had authority to sequestrate or 
impound husband's property to secure ali- 
mony payments. Harbour v. Harbour, 230 
Ark. 627, 324 S.W.2d 115 (1959). 

This section grants to a chancery court 
the authority to sequester a divorced obli- 
gor's property to secure future child sup- 
port payments, subject to proper notice to 
the obligor. Warren v. Warren, 273 Ark. 
528, 623 S.W.2d 813 (1981) (supplemental 
opinion). 



Income from a spendthrift trust can be 
reached by means of equitable garnish- 
ment or other means to satisfy a judgment 
for an arrearage in alimony. Council v. 
Owens, 28 Ark. App. 49, 770 S.W2d 193 
(1989). 

Agreements Between Parties. 

Court of equity has power to modify 
award for child support when required for 
changed conditions and best interests of 
child even though award is based in agree- 
ment of parties. Reiter v. Reiter, 225 Ark. 
157, 278 S.W2d 644 (1955). 

Chancery court may enforce by con- 
tempt proceedings property settlements 
made part of divorce decree by reference. 
Thomas v. Thomas, 246 Ark. 1126, 443 
S.W.2d 534(1969). 

Trial court which granted divorce has 
no power to issue contempt citation for 
failure to comply with property settlement 
agreement which was not incorporated in 
divorce decree. Henry v. Henry, 247 Ark. 
771, 447 S.W2d 657 (1969). 

Chancery courts are no longer to recog- 
nize private agreements modifying the 
amount of child support after July 20, 
1987. Burnett v. Burnett, 313 Ark. 599, 
855 S.W.2d 952 (1993). 

Questions relating to the construction of 
separation agreements between husband 
and wife are governed by the rules gener- 



239 



DIVORCE AND ANNULMENT 



9-12-314 



ally applicable to other contracts. Krup- 
nick v. Ray, 61 F.3d 662 (8th Cir. 1995). 

A chancellor had power to enforce the 
parties' separation agreement, even 
though no decree of divorce had been 
entered, where the agreement indicated 
that it was entered into in contemplation 
of separation and determined the rights 
and obligations of the parties during their 
separation. Grider v. Grider, 62 Ark. App. 
99, 968 S.W.2d 653 (1998). 

Because it is within the trial court's 
sound discretion to approve, disapprove, 
or modify a separation agreement the 
court also has the authority to refuse to 
enforce the agreement. Rutherford v. Ru- 
therford, 81 Ark. App. 122, 98 S.W.3d 842 
(2003). 

Bankruptcy. 

Payments ordered pursuant to a divorce 
decree are debts to the spouse for bank- 
ruptcy purposes. Johnston v. Henson, 197 
B.R. 299 (Bankr. E.D. Ark. 1996); Schmitt 
v. Eubanks, 197 B.R. 312 (Bankr. W.D. 
Ark. 1996). 

Decrees or Orders. 

After a decree has been rendered for 
permanent alimony, payment thereof may 
be enforced by attachments or orders com- 
mitting for contempt. Ex parte Hall, 125 
Ark. 309, 188 S.W 827 (1916). 

Where a decree of divorce ordered a 
husband to pay a certain amount as ali- 
mony to the wife and the husband in a 
proceeding to compel performance of the 
order admitted that he had sufficient 
funds at the time of the decree, it devolved 
upon him to account for them and the 
chancellor was not bound to accept as true 
his unsupported statement that the funds 
had been stolen from him. East v. East, 
148 Ark. 143, 229 S.W. 5 (1921). 

Courts of chancery have the inherent 
power to enforce their decrees awarding 
alimony and may do so by punishing the 



recalcitrant husband as for contempt. Ex 
parte Coulter, 160 Ark. 550, 255 S.W 15 
(1923). 

There was sufficient evidence of hus- 
band's willful disobedience of the court 
ordered maintenance and support to hold 
him in contempt of court under this sec- 
tion. Barker v. Barker, 271 Ark. 956, 611 
S.W2d 787 (1981). 

Jurisdiction. 

Where the court had made an order for 
monthly payments to the wife for mainte- 
nance, the fact that an appeal had been 
prayed did not deprive the court of juris- 
diction to enforce its order. Gray v. Gray, 
202 Ark. 1154, 155 S.W2d 575 (1941). 

No Binding Agreement. 

Trial court erred in its conclusion that 
the wife was a party to a binding agree- 
ment, because the parties had no written 
agreement under which the trial court 
could order performance, when the parties 
initial recitation of their agreement was 
unilateral and was not conducted in open 
court; the wife never assented to the oral 
stipulations of the agreement in open 
court, and vigorously refuted the exist- 
ence of an agreement. Jenkins v. Jenkins, 
103 Ark. App. 21, 285 S.W.3d 704 (2008). 

Security for Payment. 

The chancery court in a proper case may 
require a recalcitrant husband to furnish 
security for payment of future install- 
ments of alimony. Ex parte Caple, 81 Ark. 
504, 99 S.W. 830 (1907); Ex parte Coulter, 
160 Ark. 550, 255 S.W. 15 (1923). 

Cited: Reynolds v. Tassin, 212 Ark. 
1020, 208 S.W2d 987 (1948); Lewis v. 
Lewis, 222 Ark. 743, 262 S.W2d 456 
(1953); Strasnerv. Strasner, 232 Ark. 478, 
338 S.W.2d 679 (1960); Latty v. Latty, 235 
Ark. 802, 362 S.W2d 676 (1962); Gooch v. 
Gooch, 10 Ark. App. 432, 664 S.W2d 900 
(1984). 



9-12-314. Modification of allowance for alimony and mainte- 
nance — Child support. 

(a) The court, upon application of either party, may make such 
alterations from time to time, as to the allowance of alimony and 
maintenance as may be proper and may order any reasonable sum to be 
paid for the support of the wife or the husband during the pending of a 
complaint for a divorce. 



9-12-314 FAMILY LAW 240 

(b) Any decree, judgment, or order that contains a provision for the 
payment of money for the support and care of any child or children 
through the registry of the court or through the Arkansas child support 
clearinghouse shall be final judgment as to any installment or payment 
of money that has accrued until the time either party moves through 
proper motion filed with the court and served on the other party to set 
aside, alter, or modify the decree, judgment, or order. 

(c) The court may not set aside, alter, or modify any decree, judg- 
ment, or order that has accrued unpaid support prior to the filing of the 
motion. However, the court may offset against future support to be paid 
those amounts accruing during time periods other than reasonable 
visitation in which the noncustodial parent had physical custody of the 
child with the knowledge and consent of the custodial parent. 

(d) Nothing in this section shall be construed to limit the jurisdiction 
of the court to proceed to enforce a decree, judgment, or order for the 
support of a minor child or children through contempt proceedings 
when the arrearage is reduced to judgment under subsection (b) of this 
section. 

History. Rev. Stat., ch. 51, § 12; C. & Cross References. Uniform Inter- 

M. Dig., § 3510; Pope's Dig., § 4392; Acts state Family Support Act, § 9-17-101 et 
1979, No. 705, § 5; A.S.A. 1947, § 34- seq. 
1213; Acts 1987, No. 1057, § 1; 1997, No. 
1296, § 11. 

RESEARCH REFERENCES 

A.L.R. Retirement of husband as Case Note, Roark v. Roark: An Expan- 
change of circumstances warranting sion of the Application of Estoppel to Pro- 
modification of divorce decree — Prospec- hibit the Collection of Child Support Ar- 
tive retirement. 110 A.L.R.5th 237. rearages, 45 Ark. L. Rev. 631. 

Ark. L. Notes. Beard, Transfers of U. Ark. Little Rock L.J. Note: Duty of 

Property between Spouses and Former Continued Child s t Past the Age of 

Spouses - An Overview of Income Tax Majori x v Ark ^^ Rock LJ ^ 
Issues and a Suggested Analytical Ap- T ^ .\* XT , „ ., T ~. 

proach to Such Issues, 1990 Ark L. Notes Hawthorne, Note: Family Law - - Di- 

-^ vorce — Constitutionality of Arkansas 

Ark. L. Rev. Constitutional Law and Property Settlement and Alimony Stat- 

Conflict of Laws — Effect of Divorce on utes > 2 u - Ark - Little Rock LJ - 123 - 
Prior Foreign Support Decrees, 4 Ark. L. Survey of Arkansas Law: Family Law, 6 

Rev. 90. U. Ark. Little Rock L.J. 159. 

Recent Developments in the Law of Survey — Family Law, 10 U. Ark. Little 

Judgments in Arkansas, 10 Ark. L. Rev. Rock L.J. 577. 
468. Survey, Family Law, 13 U. Ark. Little 

Note, Divorce and the Division of Mari- Rock L.J. 369. 
tal Property in Arkansas — Equal or Eq- Survey — Family Law, 14 U. Ark. Little 

uitable?, 35 Ark. L. Rev. 671. Rock L.J. 371. 



241 



DIVORCE AND ANNULMENT 



9-12-314 



CASE NOTES 



Analysis 

Applicability. 

Agreements Between Parties. 

Application to Modify. 

Change in Conditions. 

— In General. 

— Not Shown. 

— Remarriage. 

— Shown. 

Continuing Jurisdiction. 

Duration of Alimony. 

Failure to Modify. 

Insurance Policy. 

Marital Property. 

Medical Insurance. 

Past Due Support. 

Real Party in Interest. 

Applicability. 

The 1979 amendment to this section 
could not be retroactively applied, absent 
clear legislative intent to that effect, and 
since there was no indication of such in- 
tent, the act was only prospective in its 
application. Sweeney v. Sweeney, 267 Ark. 
595, 593 S.W.2d 21 (1980), overruled in 
part, Day v. Day, 281 Ark. 261, 663 S.W.2d 
719 (1984). 

Agreements Between Parties. 

The chancery court cannot modify a 
contract for alimony in a specific sum. 
Pryor v. Pryor, 88 Ark. 302, 114 S.W. 700 
(1908) (decision prior to 1987 amend- 
ment); Meffert v. Meffert, 118 Ark. 582, 
177 S.W. 1 (1915). 

An alimony agreement entered into be- 
tween the parties prior to the decree, but 
subsequently made a part of the divorce 
decree, could not be modified. McCue v. 
McCue, 210 Ark. 826, 197 S.W.2d 938 
(1946) (decision prior to 1987 amend- 
ment). 

The power of a court to modify a decree 
for the support of minor children cannot 
be defeated by an agreement between the 
parents even when the agreement is incor- 
porated in the decree. Lively v. Lively, 222 
Ark. 501, 261 S.W.2d 409 (1953). 

Where the parties to a divorce action 
merely agree upon the amount the court 
should fix by its decree as alimony or 
support, without intending to confer on 
the wife an independent cause of action, 
the agreement becomes merged in the 



decree and loses its contractual nature so 
that a court may modify the decree. Lively 
v. Lively, 222 Ark. 501, 261 S.W.2d 409 
(1953). 

Where a decree for alimony or support 
is based on an independent contract be- 
tween parties which is incorporated in the 
decree and approved by the court as an 
independent contract, it does not merge 
into the court's award and is not subject to 
modification except by consent of the par- 
ties. Lively v. Lively, 222 Ark. 501, 261 
S.W.2d 409 (1953). 

Waiver, signed by husband alone, which 
provided that amount payable for support 
of child and alimony to wife was to be 
modified if there was a change in condi- 
tions, was not binding on the court. Ad- 
ams v. Adams, 223 Ark. 656, 267 S.W2d 
778 (1954). 

Where only evidence in the record of an 
agreement between the parties as to ali- 
mony and support was a recital in the 
decree of the fact and terms of the agree- 
ment, agreement not regarded as an inde- 
pendent contract but merely as a stipula- 
tion as to the amounts to be allowed by the 
court and, therefore, subject to modifica- 
tion. Law v. Law, 248 Ark. 894, 455 S.W2d 
854 (1970). 

Evidence insufficient to show that di- 
vorce decree was an independent contract 
between parties and therefore alimony 
award could be modified. Songer v. Songer, 
267 Ark. 1075, 594 S.W2d 33 (Ct. App. 
1980) (preceding decisions prior to 1987 
amendment). 

Prior to 1987, agreements between 
former spouses reducing the amount of 
child support payments did not bind the 
court, but the court could recognize such 
an agreement (1) if the agreement was 
supported by a valid consideration, or (2) 
if it were inequitable to do otherwise, thus 
where the mother gave up the right to 
32% of the father's income as previously 
ordered but gained an increase in the 
fixed amount of support from $200.00 to 
$250.00 per month over a period of time 
there was valid consideration and the 
chancellor did not err in recognizing the 
agreement as to the amount of arrearages 
due before the 1987 amendment to this 
section. Sullivan v. Edens, 304 Ark. 133, 
801 S.W.2d 32 (1990), superseded by stat- 



9-12-314 



FAMILY LAW 



242 



ute as stated in, Johnson v. Lilly, 308 Ark. 
201, 823 S.W.2d 883 (1992), superseded by 
statute as stated in, Branch v. Carter, 54 
Ark. App. 70, 923 S.W.2d 874 (1996). 

Whether provisions regarding child 
support are in a divorce decree or property 
settlement contract, the court always re- 
tains authority and jurisdiction to modify 
child support obligations. Warren v. Ko- 
rdsmeier, 56 Ark. App. 52, 938 S.W.2d 237 
(1997). 

Trial court erroneously recognized 
agreement to reduce child support be- 
tween parties; evidence on record did not 
show equitable estoppel on the part of the 
father. Shroyer v. Kauffman, 75 Ark. App. 
267, 58 S.W.3d 861 (2001). 

Application to Modify. 

Decrees for continuing alimony are al- 
ways subject to the modification of the 
court upon application of either party. 
Schley v. Dodge, 206 Ark. 1151, 178 
S.W.2d 851 (1944). 

Notice of application to modify allow- 
ance of alimony need only be such as is 
reasonably calculated to give the opposite 
party knowledge of the proceeding and 
opportunity to be heard. Schley v. Dodge, 
206 Ark. 1151, 178 S.W.2d 851 (1944). 

Where modification of allowance of ali- 
mony is sought, the application should be 
made in the original suit and not in an 
independent proceeding. Schley v. Dodge, 
206 Ark. 1151, 178 S.W.2d 851 (1944). 

Petition for modification is not pre- 
cluded by petitioner's arrearage in ali- 
mony and child support payments. Barnes 
v. Barnes, 246 Ark. 624, 439 S.W.2d 37 
(1969). 

Order awarding mother past-due child 
support was upheld because the father 
had not filed any motion to modify the 
order on the basis that a later case pro- 
hibited child support payments due to 
income from Social Security supplemental 
security income. Jones v. Billingsley, 88 
Ark. App. 131, 195 S.W3d 380 (2004). 

Change in Conditions. 

— In General. 

Allowance of alimony is subject to modi- 
fication by the court to meet changed 
conditions. McConnell v. McConnell, 98 
Ark. 193, 136 S.W 931 (1911). 

When a decree is entered fixing and 
allowing alimony for the support and 
maintenance of the wife, that decree lim- 



its and defines the extent of the husband's 
obligation in that respect, but the allow- 
ance is always subject to modification by 
the court to meet the changed situation 
and conditions of the parties in interest. 
Pledger v. Pledger, 199 Ark. 604, 135 
S.W.2d 851 (1940). 

The amount allowed for child support is 
subject to modification when required by 
changed conditions. Jerry v. Jerry, 235 
Ark. 589, 361 S.W2d 92 (1962). 

The father could not of his own volition 
reduce the monthly payment made for his 
children when one of his children became 
of age; the court alone had the right to 
change the amount of the award for the 
support of the minor children. Jerry v. 
Jerry, 235 Ark. 589, 361 S.W.2d 92 (1962). 

A decree for maintenance and support is 
always subject to modification by applica- 
tion of either party upon a showing of a 
change in circumstances. Barnes v. Bar- 
nes, 246 Ark. 624, 439 S.W2d 37 (1969). 

— Not Shown. 

Former husband was not entitled to 
cease payment of alimony where former 
wife lived with a man but did not marry 
him. Byrd v. Byrd, 252 Ark. 202, 478 
S.W2d45 (1972). 

A change in circumstances sufficient to 
support a modification of alimony was not 
shown where the former wife began to 
cohabitate with another man in her home, 
but the former wife's financial condition 
was the same as it was at the time of the 
divorce and the man's financial contribu- 
tions to household expenses were no 
greater than contributions made by the 
former wife's father, who lived with her 
from the time of the divorce until his 
death. Herman v. Herman, 335 Ark. 36, 
977 S.W.2d 209 (1998). 

— Remarriage. 

Chancellor had jurisdiction to change 
the order providing for maintenance 
where wife remarried. Perry v. Perry, 229 
Ark. 202, 313 S.W2d 851 (1958). 

Remarriage is a circumstance to be con- 
sidered in determining a change in cir- 
cumstances. Barnes v. Barnes, 246 Ark. 
624, 439 S.W2d 37 (1969). 

— Shown. 

Change in conditions held to warrant 
modification. Ray v. Ray, 205 Ark. 765, 170 
S.W.2d 681 (1943). 



243 



DIVORCE AND ANNULMENT 



9-12-314 



Chancellor did not abuse his discretion 
in holding that there has been a change in 
wife's circumstances. Bracken v. Bracken, 
302 Ark. 103, 787 S.W.2d 678 (1990). 

Trial court did not abuse its discretion 
in awarding the wife an increase in ali- 
mony where the wife was being treated for 
the progressive disease of rheumatoid ar- 
thritis, which her doctor testified had be- 
come worse since the last hearing, and he 
was unable to pay for the treatment at 
this time; furthermore, her doctor testified 
that it was his opinion that she was un- 
able to hold a regular job, and in setting 
the $4500 monthly alimony, the trial court 
took into consideration both the wife's 
need for a new vehicle and some major 
home repairs that were going to need to be 
made. Matthews v. Matthews, — Ark. 
App. — , — S.W.3d — , 2009 Ark. App. 
LEXIS 519 (May 20, 2009). 

Continuing Jurisdiction. 

An order for alimony may be set aside at 
a subsequent term. Poe v. Poe, 93 Ark. 
426, 124 S.W. 1029 (1910). 

Court that granted divorce to husband 
had jurisdiction to modify the order after 
it had been affirmed on appeal and man- 
date was filed in the chancery court after 
institution of proceeding to modify. Shep- 
pard v. Sheppard, 192 Ark. 298, 90 S.W.2d 
960 (1936). 

The chancery court granting a divorce 
has continuing jurisdiction to modify the 
original allowance for maintenance of the 
minor children of the divorced parents 
and will do so upon a showing of changed 
conditions. Watnick v. Bockman, 209 Ark. 
696, 192 S.W.2d 131 (1946). 

The chancery court has continuing ju- 
risdiction to modify child support and cus- 
tody orders, but only when the moving 
party has demonstrated a change in cir- 
cumstances requiring modification. Sla- 
ton v. Slaton, 330 Ark. 287, 956 S.W.2d 
150 (1997). 

Duration of Alimony. 

A decree ordering that alimony would 
terminate only upon the death of either 
party violated statutory and case author- 
ity that, in the absence of a settlement 
agreement to the contrary, an award of 
alimony is always subject to modification, 
upon application of either party, notwith- 
standing that the decree also stated that 
the court would retain jurisdiction of the 



alimony issue. Holaway v. Holaway, 70 
Ark. App. 240, 16 S.W.3d 302 (2000). 

Failure to Modify. 

Since the defendant did not file a motion 
to modify child support when his son 
turned 18, the chancellor should not have 
retroactively reduced the defendant's 
child support arrearages which had be- 
come final judgments. Arkansas Dep't of 
Human Servs. v. Porter, 306 Ark. 190, 810 
S.W.2d 949 (1991). 

Trial court did not err in awarding 
mother past-due child support where the 
original order of support in 1995 was 
made prior to the ruling in Davis, which 
held that Arkansas courts could not order 
child support payments based on income 
from federal SSI benefits; further, because 
the case was a one-issue case, which was 
tried on the pleadings and did not involve 
child custody, the trial judge did not abuse 
his discretion in denying father's motion 
to transfer. Jones v. Billingsley, 88 Ark. 
App. 131, 195 S.W.3d 380 (2004). 

Insurance Policy. 

Provisions that award the ex-wife the 
benefit of some interest in a policy of 
insurance on an ex-husband's life do not 
violate public policy, because the insur- 
ance policy is not a wagering policy taken 
out by one with no insurable interest on 
the life of another, but is one taken out by 
the husband, who may take out a policy on 
his own life and name anyone he pleases 
as beneficiary. Dodson v. Dodson, 37 Ark. 
App. 86, 825 S.W.2d 608 (1992). 

Where a written property settlement in 
contemplation of divorce provided the 
husband would maintain his present life 
insurance program and name the wife 
irrevocable beneficiary, the insurance 
policy was a bargained-for item and there- 
fore should be replaced if allowed to lapse. 
Dodson v. Dodson, 37 Ark. App. 86, 825 
S.W.2d 608 (1992). 

Marital Property. 

To the extent a spouse acquires an en- 
forceable right during the marriage to 
recover fees under a contingency fee con- 
tract, the spouse acquired marital prop- 
erty; any difficulty in valuing contingency 
fee contracts may be solved by reserving 
jurisdiction in the trial court in order to 
await the outcome of the underlying ac- 
tions. McDermott v. McDermott, 336 Ark. 
557, 986 S.W.2d 843 (1999). 



9-12-315 



FAMILY LAW 



244 



Credit card debts incurred by one party 
during the period of the parties' legal 
separation were marital debts that the 
chancellor had discretion to divide be- 
tween the parties. Schumacher v. Schu- 
macher, 66 Ark. App. 9, 986 S.W.2d 883 
(1999). 

Funds acquired by one party and depos- 
ited into the parties' joint checking ac- 
count prior to their divorce are marital 
property subject to division by the court. 
Schumacher v. Schumacher, 66 Ark. App. 
9, 986 S.W.2d 883 (1999). 

Medical Insurance. 

Even though wife filed no claim for 
relief in response to husband's motion for 
modification of support order, husband 
was properly ordered to continue to main- 
tain a policy of hospitalization and medi- 
cal insurance on the eldest son. James v. 
James, 52 Ark. App. 29, 914 S.W.2d 773 
(1996). 

Past Due Support. 

Mother estopped from collecting past 
due child support from father, where the 
parents continued to live together after 
the divorce, and the father was the chil- 
dren's primary supporter subsequent to 
the divorce and until the parents sepa- 



rated. Ramsey v. Ramsey, 43 Ark. App. 91, 
861 S.W.2d 313 (1993). 

A child support judgment would also be 
subject to the equitable defenses that ap- 
ply to all other judgments. Ramsey v. 
Ramsey, 43 Ark. App. 91, 861 S.W.2d 313 
(1993). 

Real Party in Interest. 

For purposes of determining the real 
party in interest in a situation where the 
custodial parent has assigned his or her 
child support rights to the Office of Child 
Support Enforcement, it is immaterial 
whether the custodial parent is receiving 
public assistance on behalf of the child. 
Office of Child Support Enforcement v. 
Terry, 336 Ark. 310, 985 S.W.2d 711 
(1999). 

Cited: Kirkland v. Wright, 247 Ark. 
794, 448 S.W2d 19 (1969); Carter v. 
Clausen, 263 Ark. 344, 565 S.W.2d 17 
(1978); Milne v. Milne, 266 Ark. 900, 587 
S.W.2d 229 (Ct. App. 1979); Boyles v. 
Boyles, 268 Ark. 120, 594 S.W.2d 17 
(1980); White v. Winston, 302 Ark. 345, 
789 S.W2d 459 (1990); Littles v. Flemings, 
333 Ark. 476, 970 S.W.2d 259 (1998); 
Dunavant v. Dunavant, 66 Ark. App. 1, 
986 S.W2d 880 (1999). 



9-12-315. Division of property. 

(a) At the time a divorce decree is entered: 

(1)(A) All marital property shall be distributed one-half (V2) to each 
party unless the court finds such a division to be inequitable. In that 
event the court shall make some other division that the court deems 
equitable taking into consideration: 

(i) The length of the marriage; 

(ii) Age, health, and station in life of the parties; 

(iii) Occupation of the parties; 

(iv) Amount and sources of income; 

(v) Vocational skills; 

(vi) Employability; 

(vii) Estate, liabilities, and needs of each party and opportunity of 
each for further acquisition of capital assets and income; 

(viii) Contribution of each party in acquisition, preservation, or 
appreciation of marital property, including services as a homemaker; 
and 

(ix) The federal income tax consequences of the court's division of 
property 

(B) When property is divided pursuant to the foregoing consider- 
ations the court must state its basis and reasons for not dividing the 



245 DIVORCE AND ANNULMENT 9-12-315 

marital property equally between the parties, and the basis and 
reasons should be recited in the order entered in the matter; 
(2) All other property shall be returned to the party who owned it 
prior to the marriage unless the court shall make some other division 
that the court deems equitable taking into consideration those factors 
enumerated in subdivision (a)(1) of this section, in which event the 
court must state in writing its basis and reasons for not returning the 
property to the party who owned it at the time of the marriage. 

(3)(A) Every such final order or judgment shall designate the specific 
real and personal property to which each party is entitled. 

(B) When it appears from the evidence in the case to the satisfac- 
tion of the court that the real estate is not susceptible of the division 
as provided for in this section without great prejudice to the parties 
interested, the court shall order a sale of the real estate. The sale 
shall be made by a commissioner to be appointed by the court for that 
purpose at public auction to the highest bidder upon the terms and 
conditions and at the time and place fixed by the court. The proceeds 
of every such sale, after deducting the cost and expenses of the sale, 
including the fee allowed the commissioner by the court for his or her 
services, shall be paid into the court and by the court divided among 
the parties in proportion to their respective rights in the premises. 

(C) The proceedings for enforcing these orders may be by petition 
of either party specifying the property the other has failed to restore 
or deliver, upon which the court may proceed to hear and determine 
the same in a summary manner after ten (10) days' notice to the 
opposite party. Such order, judgment, or decree shall be a bar to all 
claims of dower or curtesy in and to any of the lands or personalty 
then owned or thereafter acquired by either party; 

(4) When stocks, bonds, or other securities issued by a corporation, 
association, or government entity make up part of the marital property, 
the court shall designate in its final order or judgment the specific 
property in securities to which each party is entitled, or after determin- 
ing the fair market value of the securities, may order and adjudge that 
the securities be distributed to one (1) party on condition that one-half 
(V2) the fair market value of the securities in money or other property be 
set aside and distributed to the other party in lieu of division and 
distribution of the securities. 

(b) For the purpose of this section, "marital property" means all 
property acquired by either spouse subsequent to the marriage except: 

(1) Property acquired prior to marriage or by gift or by reason of the 
death of another, including, but not limited to, life insurance proceeds, 
payments made under a deferred compensation plan, or an individual 
retirement account, and property acquired by right of survivorship, by 
a trust distribution, by bequest or inheritance, or by a payable on death 
or a transfer on death arrangement; 

(2) Property acquired in exchange for property acquired prior to the 
marriage or in exchange for property acquired by gift, bequest, devise, 
or descent; 



9-12-315 FAMILY LAW 246 

(3) Property acquired by a spouse after a decree of divorce from bed 
and board; 

(4) Property excluded by valid agreement of the parties; 

(5) The increase in value of property acquired prior to marriage or by 
gift or by reason of the death of another, including, but not limited to, 
life insurance proceeds, payments made under a deferred compensation 
plan, or an individual retirement account, and property acquired by 
right of survivorship, by a trust distribution, by bequest or inheritance, 
or by a payable on death or a transfer on death arrangement, or in 
exchange therefor; 

(6) Benefits received or to be received from a workers' compensation 
claim, personal injury claim, or social security claim when those 
benefits are for any degree of permanent disability or future medical 
expenses; and 

(7) Income from property owned prior to the marriage or from 
property acquired by gift or by reason of the death of another, including, 
but not limited to, life insurance proceeds, payments made under a 
deferred compensation plan, or an individual retirement account, and 
property acquired by right of survivorship, by a trust distribution, by 
bequest or inheritance, or by a payable on death or a transfer on death 
arrangement, or in exchange therefor. 

(c) The court is not required to address the division of property at the 
time a divorce decree is entered if either party is involved in a 
bankruptcy proceeding. 

History. Civil Code, § 461; Acts 1891, § 2, and No. 799, § 2, provided, in part, 

No. 26, § 1, p. 27; 1893, No. 102, § 1, p. that the provisions of subdivisions (a)(1) 

176; C. & M. Dig., § 3511; Pope's Dig., and (b)(3) shall not be applicable to cases 

§ 4393; Acts 1953, No. 348, § 3; 1979, No. pending in the courts of this state on 

705, § 1; 1981, No. 69, § 1; 1981, No. 714, March 28, 1981, nor to any case pending 

§ 2; 1981, No. 798, §§ 1, 2; 1981, No. 799, in the courts of this state on March 28, 

§§ 1, 2; 1983, No. 369, §§ 1, 2; A.S.A. 1981? where that case is dismissed and a 

1947, § 34-1214; Acts 1987, No. 676, § 1; case involving the same parties and issues 

' No- 366 § 1; 1991 No. 1167, § 1; ig refiled wit * n ni £ 0) d after the 

1993, No. 1067, § 1; 2001, No. 1671, § 1. dismissal of the ori oHnal case 
A C R C Nofp«s As ampnHpH hv Arts dismissal oi me original case. 

2001, No. 1671, subsection (b) contained ^ 19 f 8 ?' No " 369 ' § 2 ' P r0 ™ r ' m 

an additional subdivision which read: ? art ' **"* <** Provisions of subdivision 

"The changes to this subsection (b) passed (a)(4) s ^ a11 b ^ a PP hcable * al , cases P?? d ; 

by the 83rd General Assembly meeting in in S on March 8 > 1983 > and a11 cases filed 

Regular Session shall not apply to cases thereafter. 

based upon facts which occurred prior to Cross References. Life interests and 

September 1, 2001." remainders, determination of present 

Publisher's Notes. Acts 1981, No. 798, value, § 18-2-101 et seq. 

RESEARCH REFERENCES 

A.L.R. Divorce and separation: work- as affecting divorced spouse's right to re- 

ers' compensation benefits as marital cover as named beneficiary on former 

property subject to distribution. 30 spouse's individual retirement account. 99 

A.L.R.5th 139. A.L.R.5th 637. 

Divorce decree or settlement agreement Divorce and separation: Determination 



247 



DIVORCE AND ANNULMENT 



9-12-315 



of whether proceeds from personal injury 
settlement or recovery constitute marital 
property. 109 A.L.R.5th 1. 

Division of lottery proceeds in divorce 
proceedings. 124 A.L.R.5th 537. 

Spouse's professional degree or license 
as marital property for purposes of ali- 
mony, support, or property settlement. 3 
A.L.R.6th 447. 

Ark. L. Notes. Malone, For Richer or 
Poorer, 'til Decree Do Us Part — A 
Spouse's Entitlement to Division of Pen- 
sion Funds and Professional Degrees as 
Marital Property, 1984 Ark. L. Notes 47. 

Beard, Transfers of Property between 
Spouses and Former Spouses — An Over- 
view of Income Tax Issues and a Sug- 
gested Analytical Approach to Such Is- 
sues, 1990 Ark. L. Notes 1. 

Brill, Equity and the Restitutionary 
Remedies: Constructive Trust, Equitable 
Lien, and Subrogation, 1992 Ark. L. Notes 
1. 

Ark. L. Rev. Valuation of Life and Re- 
mainder Interests in Property, 5 Ark. L. 
Rev. 373. 

Domestic Relations — Restoration of 
Property Obtained in Consideration or by 
Reason of Marriage upon Divorce, 7 Ark. 
L. Rev. 64. 

Divorce and Property Awards, 7 Ark. L. 
Rev. 367. 

Tenancies by the Entirety — An Estate 
Planner's Dilemma (A Study of Unin- 
tended Result), 23 Ark. L. Rev. 44. 

Ante-Nuptial Agreements in Arkansas 

— Divorce Provisions, 29 Ark. L. Rev. 
480. 

Note, Divorce and the Division of Mari- 
tal Property in Arkansas — Equal or Eq- 
uitable?, 35 Ark. L. Rev. 671. 

Wagoner v. Wagoner: Division of Prop- 
erty Upon Divorce — The Classification of 
Returns from Separate Property, 42 Ark. 
L. Rev. 173. 

Scott, The Revocable-Irrevocable Trust 

— The Way Out?, 42 Ark. L. Rev. 713. 
Note, Bunt v. Bunt: Arkansas Extends 

the Scope of Marital Property, 42 Ark. L. 
Rev. 735. 



Henry, Recent Developments, McDer- 
mott v. McDermott, 336 Ark. 557, 986 
S.W.2d 843 (1999), 52 Ark. L. Rev. 527. 

Comment, Arkansas Marriage: A Part- 
nership Between a Husband and Wife, or 
a Safety Net for Support?, 61 Ark. L. Rev. 
735. 

U. Ark. Little Rock L.J. Hawthorne, 
Note: Family Law — Divorce — Constitu- 
tionality of Arkansas Property Settlement 
and Alimony Statutes, 2 U. Ark. Little 
Rock L.J. 123. 

Shively, Survey of Family Law, 3 U. Ark. 
Little Rock L.J. 223. 

Legislative Survey, Family Law, 4 U. 
Ark. Little Rock L.J. 595. 

Survey of Arkansas Law, Family Law, 5 
U. Ark. Little Rock L.J. 143. 

Survey of Arkansas Law: Family Law, 6 
U. Ark. Little Rock L.J. 159. 

Harris, the Arkansas Marital Property 
Statute and the Arkansas Appellate 
Courts: Tiptoeing Together Through the 
Tulips, 7 U. Ark. Little Rock L.J. 1. 

Arkansas Law Survey, Waddell, Family 
Law, 7 U. Ark. Little Rock L.J. 229. 

Notes, Domestic Relations — Arkansas 
Supreme Court Defines Marital Property 
to Include Future Pension Benefits. Day v. 
Day, 281 Ark. 261, 663 S.W2d 719 (1984), 
7 U. Ark. Little Rock L.J. 661. 

Arkansas Law Survey, Price, Civil Pro- 
cedure, 9 U. Ark. Little Rock L.J. 91. 

Survey — Family Law, 10 U. Ark. Little 
Rock L.J. 207. 

Survey — Family Law, 11 U. Ark. Little 
Rock L.J. 215. 

Survey — Family Law, 12 U. Ark. Little 
Rock L.J. 213. 

Survey — Family Law, 14 U. Ark. Little 
Rock L.J. 799. 

U. Ark. Little Rock L. Rev. Survey of 
Legislation, 2001 Arkansas General As- 
sembly, Family Law, 24 U. Ark. Little 
Rock L. Rev. 483. 

Annual Survey of Caselaw, Family Law, 
24 U. Ark. Little Rock L. Rev. 1021. 

Annual Survey of Caselaw, Family Law, 
26 U. Ark. Little Rock L. Rev. 915. 



CASE NOTES 



Analysis 



Constitutionality. 
In General. 
Purpose. 



Applicability. 
Adequacy of Division. 
Adverse Possession. 
Agreement of Parties. 
Authority of Court. 



9-12-315 



FAMILY LAW 



248 



Conflict of Laws. 

Contribution of Parties. 

Conveyance to Spouse. 

Debts. 

Designation by Decree. 

Dower and Curtesy. 

Election of Remedy. 

Fraud. 

Jurisdiction. 

Legislative Intent. 

Marital Property. 

— In General. 

— Accounts Receivable. 

— Bonus. 

— Capital Accounts. 

— Commissions. 

— Disability Income. 

— Employment Compensation. 

— Enhanced Business Career. 

— Estates by Entirety. 

— Exchange for Property. 

— Farm Equipment. 

— Furniture. 

—Gifts. 

— Goodwill. 

— Homestead. 

— Identification. 

— Improvements. 

— Income. 

— Inheritance. 

— Insurance Proceeds. 

— Interest. 

— Joint Enterprise. 

— Livestock. 

— Partnership Assets. 

— Pension, Retirement Pay, Etc. 

— Personal Injury Claims. 

— Presumption. 

— Property Acquired After Separation. 

— Property Acquired Before Marriage. 

— Real Property. 

—Stock. 

— Stock Options. 

— Trust Property. 

— Valuation. 

— Work in Progress. 

— Workers' Compensation Claims. 

Pleadings. 

Redivision of Property. 

Remarriage. 

Res Judicata. 

Return of Nonmarital Property. 

Sale of Lands. 

Separate Property. 

Social Security Benefits. 

Tax Consequences. 

Timing. 

Tort Action. 



Undue Influence. 

Unequal Division. 

— In General. 

— Factors Considered. 

— Motor Vehicles. 

— Reversed. 

— Statement of Reasons. 

— Tax Consequences. 

—Upheld. 

Waiver. 

Note. — Many of the following cases were 
decided prior to the 1979 amendment 
to this section which made the section 
apply equally to both husband and 
wife and provided for an equal divi- 
sion of property rather than the V3 of 
the husband's real and personal prop- 
erty previously allotted to the wife. 

Constitutionality. 

This section is not violative of the Equal 
Protection Clause, either facially or as 
applied. Hamilton v. Hamilton, 317 Ark. 
572, 879 S.W2d 416 (1994). 

The classification of a pension plan as 
marital property does not violate the 
equal protection clause. Skelton v. Skel- 
ton, 339 Ark. 227, 5 S.W3d 2 (1999). 

In General. 

Trial court before passing on property 
rights of parties in divorce proceeding 
must determine (1) jurisdiction, (2) cause 
of action, and (3) who is injured party. 
Smith v. Smith, 223 Ark. 627, 267 S.W2d 
771 (1954). 

The 1953 amendment simply expanded 
the property rights of certain nonresident 
wives in Arkansas divorce cases and the 
statute is a rule still to be applied in 
Arkansas divorce proceedings. Knighton 
v. Knighton, 259 Ark. 399, 533 S.W2d 215 
(1976). 

Section 1-2- 120(c) which provides that 
no action pending at the time any statu- 
tory provision is repealed shall be affected 
by the repeal was not applicable to the 
amendment of the section by Acts 1979, 
No. 705, which made this section gender- 
neutral, as the amendment did not repeal 
the prior statutes, but merely replaced 
statutes already clearly void for unconsti- 
tutionality. Noble v. Noble, 270 Ark. 602, 
605 S.W2d 453 (1980). 

In a divorce action, the trial court is not 
required to divide in kind every piece of 
personal property. Hackett v. Hackett, 278 
Ark. 82, 643 S.W.2d 560 (1982). 



249 



DIVORCE AND ANNULMENT 



9-12-315 



Although Arkansas is not truly a com- 
munity property state, this section makes 
it so for all practical purposes when it is 
utilized in dissolution of marriage and 
distribution of assets. Potter v. Potter, 280 
Ark. 38, 655 S.W.2d 382 (1983), overruled 
in part, Day v. Day, 281 Ark. 261, 663 
S.W.2d 719 (1984), overruled in part, 
Meeks v. Meeks, 290 Ark. 563, 721 S.W.2d 
653 (1986), questioned, Liles v. Liles, 289 
Ark. 159, 711 S.W.2d 447 (1986), ques- 
tioned, Dillard v. Dillard, 28 Ark. App. 
217, 772 S.W.2d 355 (1989). 

Independent action, subsequent to di- 
vorce decree, does not lie for division of 
marital property, for this section man- 
dates that marital property be divided at 
the time the divorce is granted. Arkansas 
Supreme Court has carved out exceptions 
to the requirement that marital property 
be divided at the time the divorce decree is 
entered in cases where the parties specifi- 
cally agree to postpone division of the 
property to a later date and where a 
divorce is granted by a foreign court lack- 
ing jurisdiction to divide Arkansas mari- 
tal property. Mitchell v. Meisch, 22 Ark. 
App. 264, 739 S.W.2d 170 (1987). 

This section does not compel math- 
ematical precision in the distribution of 
property, rather, it simply requires that 
marital property be distributed equitably. 
Coombe v. Coombe, 89 Ark. App. 114, 201 
S.W.3d 15 (2005). 

Purpose. 

The purpose of this section is to effect 
the equitable distribution of property 
upon divorce. Stover v. Stover, 287 Ark. 
116, 696 S.W.2d 750 (1985); Canady v. 
Canady, 290 Ark. 551, 721 S.W.2d 650 
(1986); Yockey v. Yockey, 25 Ark. App. 321, 
758 S.W.2d 421 (1988). 

Applicability. 

Act 1979, No. 705, which made this 
section gender-neutral, could not be retro- 
actively applied absent clear legislative 
intent to that effect, and since there was 
no indication of such intent, the act was 
only prospective in its application. 
Sweeney v. Sweeney, 267 Ark. 595, 593 
S.W.2d 21 (1980), overruled in part, Day v. 
Day, 281 Ark. 261, 663 S.W.2d 719 (1984). 

Acts 1979, No. 705, which amended this 
section, did not abolish § 9-12-317, the 
entirety property statute which had no 
constitutional infirmities as did this sec- 



tion; accordingly, this section does not 
apply to property owned as tenants by the 
entirety. Warren v. Warren, 273 Ark. 528, 
623 S.W2d 813 (1981). 

Acts 1979, No. 705, which amended this 
section, was applicable to property divi- 
sion where memorandum opinion was is- 
sued prior to amendment but final decree 
was issued after amendment. Chrestman 
v. Chrestman, 4 Ark. App. 281, 630 S.W.2d 
60 (1982). 

This section is not applicable to prop- 
erty held as tenants by the entirety. Hale 
v. Hale, 307 Ark. 546, 822 S.W2d 836 
(1992). 

Although the chancellor's determina- 
tions that the houseboat purchased with 
husband's inheritance was marital prop- 
erty and the joint checking account was 
husband's separate property may have 
appeared inconsistent, they underscored 
the fine factual distinctions that often 
characterize marital-property divisions. 
McKav v. McKay, 340 Ark. 171, 8 S.W.3d 
525 (2000). 

Statute did not apply to property held 
as tenants by the entirety. Banks v. Evans, 
347 Ark. 383, 64 S.W3d 746 (2002). 

Adequacy of Division. 

For cases discussing adequacy or appro- 
priateness of specific divisions of property 
in particular circumstances, see Morgan v. 
Morgan, 193 Ark. 454, 100 S.W.2d 978 
(1937); Coltharp v. Coltharp, 218 Ark. 215, 
235 S.W.2d 884 (1951); Turner v. Turner, 
219 Ark. 259, 243 S.W.2d 22 (1951); 
Hewitt v. Morgan, 220 Ark. 123, 246 
S.W2d 423 (1952); Brimson v. Brimson, 
227 Ark. 1045, 304 S.W.2d 935 (1957); 
Koury v. Koury, 230 Ark. 536, 323 S.W.2d 
554 (1959); Palmer v. Palmer, 238 Ark. 
690, 384 S.W2d 256 (1964); Mickle v. 
Mickle, 252 Ark. 468, 479 S.W2d 563 
(1972); Grant v. Grant, 254 Ark. 1060, 497 
S.W.2d 255 (1973); Johnson v. Johnson, 
265 Ark. 925, 582 S.W2d 32 (1979); Gross 
v. Gross, 266 Ark. 186, 585 S.W2d 14 
(1979); Russell v. Russell, 275 Ark. 193, 
628 S.W2d 315 (1982); Belanger v. Be- 
langer, 276 Ark. 522, 637 S.W.2d 557 
(1982); Duncan v. Duncan, 11 Ark. App. 
25, 665 S.W2d 893 (1984). 

The fact that one spouse made contribu- 
tions to certain property does not neces- 
sarily require that those contributions be 
recognized in the property division upon 
divorce. Canady v. Canady, 290 Ark. 551, 
721 S.W.2d 650 (1986). 



9-12-315 



FAMILY LAW 



250 



Where the chancellor stated he was 
relying on the reasons cited in subdivision 
(a)(1) of this section for not equally divid- 
ing the marital property, and the main 
reasons were that it was the wife who 
contributed to their acquisition and the 
husband was able to support himself, he 
then read into the record the nine factors 
listed under this subdivision, and the de- 
cree stated the grounds for the unequal 
division were those stated orally by the 
court at the conclusion of the trial, the 
chancellor sufficiently complied with sub- 
division (a)(1) of this section in stating his 
reasons for not equally dividing the mari- 
tal property at the conclusion of the trial. 
Jones v. Jones, 17 Ark. App. 144, 705 
S.W2d 447 (1986). 

If the chancellor intended that improve- 
ments to the wife's separate property be 
held to be marital property, he failed to 
adequately explain the basis for his un- 
equal division, as required by subdivision 
(a)(1) of this section; therefore, the action 
was remanded. Camp v. Camp, 18 Ark. 
App. 87, 710 S.W.2d 842 (1986). 

Where appellate court was unable to 
determine whether it was error for the 
trial court to make what was essentially a 
grossly disproportionate distribution of 
the marital retirement assets remaining 
after the settlement in favor of a wife 
because the record was not fully devel- 
oped, reversal of the trial court's division 
of the parties' retirement and pension 
funds was warranted; on remand, the trial 
court could permit the introduction of 
such additional evidence as was necessary 
to make findings regarding the valuation 
of all of the parties' assets and the factors 
to be considered, clearly articulate 
whether it was making an equal or un- 
equal distribution of assets and, if un- 
equal, the reasons why such distribution 
was equitable. Copeland v. Copeland, 84 
Ark. App. 303, 139 S.W3d 145 (2003). 

Trial court's property distribution in di- 
vorce proceedings was not improper be- 
cause, although the wife argued that the 
husband's explanations about undisclosed 
accounts were inconsistent, the trial court 
nonetheless clearly accepted his testi- 
mony that the funds in the accounts be- 
longed to a company and not to him per- 
sonally; the trial court's conclusions were 
not clearly erroneous. Conlee v. Conlee, 
370 Ark. 89, 257 S.W3d 543 (2007). 



Adverse Possession. 

Where wife pursuant to divorce decree 
was granted "use and occupancy of pre- 
mises during her lifetime" grantee of wife 
under warranty deed could not establish 
adverse possession as against husband, 
since latter was not entitled to possession 
until death of wife. Pierce v. Lowe, 221 
Ark. 796, 256 S.W2d 43 (1953). 

Agreement of Parties. 

A wife's agreement to relinquish all 
rights to her husband's property, if made 
for a wholly inadequate consideration, 
will be set aside on that account. Leonard 
v. Leonard, 101 Ark. 522, 142 S.W 1133 
(1912). 

A divorce, reciting that alimony should 
be paid in full accord of the wife's right, 
title and interest in any property of the 
husband, was held to show that the par- 
ties agreed on a sum to be paid in lieu of 
the wife's right to a division of property 
under this section. Erwin v. Erwin, 179 
Ark. 192, 14 S.W2d 1100 (1929). 

Where husband agreed that wife should 
have half of his property he became 
trustee as to wife's rights under the agree- 
ment and the court had power to compel 
specific performance against contention 
that wife was confined to an action for 
debt. Orr v. Orr, 206 Ark. 844, 177 S.W.2d 
915(1944). 

Where an order was entered awarding 
to the wife an amount agreed upon by the 
husband and wife to be equal to one-third 
of their personal property and crops, the 
husband had no grounds to complain 
about the division of personal property, 
even though it could not be determined 
from the record whether the trial court 
made an award of exactly one third of the 
personal property to the wife. Wilson v. 
Wilson, 270 Ark. 485, 606 S.W2d 56 
(1980). 

Reconciliation agreement failed to effec- 
tively exclude the subject properties from 
the marital property law. Schichtel v. 
Schichtel, 3 Ark. App. 36, 621 S.W2d 504 
(1981). 

There are two types of agreements con- 
cerning the payment of alimony: (1) the 
agreement on the amount of alimony 
which is an independent contract which 
cannot be modified by the court; and (2) an 
agreement upon an amount that the court 
should fix as alimony and which the court 
can modify. Shipley v. Shipley, 305 Ark. 
257, 807 S.W2d 915 (1991). 



251 



DIVORCE AND ANNULMENT 



9-12-315 



Trial court erred by awarding a former 
wife an interest in land that her former 
husband inherited from his mother be- 
cause a postnuptial agreement was not 
binding since the parties' marriage was 
not adequate consideration; moreover, 
there were no mutual obligations since 
the wife was not required to do anything. 
Simmons v. Simmons, 98 Ark. App. 12, 
249 S.W.3d 843 (2007). 

Authority of Court. 

The chancellor is given broad powers 
under this section to distribute all prop- 
erty in divorce, nonmarital as well as 
marital, to achieve an equitable division; 
the only requirement is that if he divides 
marital property other than evenly, or 
nonmarital property other than by return- 
ing it to the original owner, he will con- 
sider the nine factors specified in the 
statute, and fully explain his reasons for 
the record. Williford v. Williford, 280 Ark. 
71, 655 S.W.2d 398 (1983). 

The marital-property law vests in the 
trial court a marked measure of flexibility 
in apportioning the couple's total assets. 
Canady v. Canady, 290 Ark. 551, 721 
S.W.2d 650 (1986). 

It is not an abuse of chancellor's discre- 
tion to ascertain extent of marital prop- 
erty as of date of the divorce, and evaluate 
it as of that date as well. Wilson v. Wilson, 
294 Ark. 194, 741 S.W2d 640 (1987). 

Chancellor has no authority to dispose 
of property rights in an award of separate 
maintenance. Moore v. Moore, 21 Ark. 
App. 165, 731 S.W2d 215 (1987). 

The chancellor is given broad powers 
under this section to distribute all prop- 
erty in divorce, nonmarital as well as 
marital, to achieve an equitable division. 
Smith v. Smith, 32 Ark. App. 175, 798 
S.W2d 442 (1990). 

Chancellor's award on remand need not 
necessarily correspond to the findings re- 
garding the extent of the separate and 
marital interests of the parties. Cate v. 
Cate, 35 Ark. App. 79, 812 S.W2d 697 
(1991). 

Although this section provides a list of 
factors for the court to consider in dividing 
the marital property, the trial court did 
not err in permitting the parties to equally 
share in the proceeds of the sale of the 
marital home and the equity resulting 
from the wife's payment of the mortgage 
during the divorce proceedings because a 



trial court has discretion to determine 
whether an offset is appropriate when 
parties to a divorce expend funds to pre- 
serve marital property during the pen- 
dency of proceedings; however, the parties 
were ordered to equally share expenses 
for repair to the marital residence that 
exceeded the minimum amount specified 
by the trial court. Cole v. Cole, 89 Ark. 
App. 134, 201 S.W3d 21 (2005). 

Conflict of Laws. 

Where a divorce decree rendered in an- 
other state divested the wife of all right 
and title in the husband's real estate, the 
wife was not entitled to husband's land in 
Arkansas since this section has no appli- 
cation to decrees rendered in other states. 
Gwynn v. Rush, 143 Ark. 4, 219 S.W 339 
(1920). 

Where realty located in another state 
was acquired by the parties during their 
marriage and where the law of the other 
state does not recognize a wife's inchoate 
right of dower in her husband's separate 
property, the law of the other state would 
apply in determining the parties' rights in 
that property in a divorce proceeding. 
Strang v. Strang, 258 Ark. 139, 523 S.W2d 
887 (1975). 

Contribution of Parties. 

Where wife was employed during most 
of the time of her marriage and contrib- 
uted her earnings to the acquisition of 
furniture and other personal property, 
chancellor was justified upon granting di- 
vorce to wife in holding that wife had an 
equal claim on the items so acquired. Carr 
v. Carr, 226 Ark. 355, 289 S.W.2d 899 
(1956). 

Article 9, § 7 of the Constitution was 
meant to put a wife on an equal footing 
with her husband in the acquisition and 
transfer of property, but it does not pur- 
port to clothe the wife with superior prop- 
erty rights in the event of a divorce; ac- 
cordingly, the trial court did not err when 
it ordered an equal division of all the 
marital property despite the wife's conten- 
tion that it was inequitable because her 
earnings had formed the greater part of 
the purchase price. Stuart v. Stuart, 280 
Ark. 546, 660 S.W.2d 162 (1983). 

When one spouse makes significant con- 
tributions of time, effort and skill which 
are directly attributable to the increase in 
value of nonmarital property, the pre- 



9-12-315 



FAMILY LAW 



252 



sumption arises that such increase be- 
longs to the marital estate. Layman v. 
Layman, 292 Ark. 539, 731 S.W.2d 771 

(1987). 

Conveyance to Spouse. 

This section does not apply to property 
which the husband conveyed to his wife on 
voluntary separation. McNutt v. McNutt, 
78 Ark. 345, 78 Ark. 346, 95 S.W. 778 
(1906); Harbour v. Harbour, 103 Ark. 273, 
146 S.W. 867 (1912); Apple v. Apple, 105 
Ark. 669, 152 S.W. 296 (1912). 

This section does not apply to property 
which the husband conveyed to his wife 
for love and affection. Dickson v. Dickson, 
102 Ark. 635, 145 S.W 529 (1912). 

Where husband obtained a divorce for 
cause, it was held that the wife was not 
entitled to return of the land which she 
had deeded to husband. Price v. Price, 127 
Ark. 506, 192 S.W 893 (1917). 

A decree of divorce awarding to the wife 
real estate conveyed to her by the defen- 
dant as a gift in consideration of love and 
affection, was held erroneous as depriving 
her of dower on account of gifts thereto- 
fore made to which this section has no 
application. Glover v. Glover, 153 Ark. 
167, 240 S.W. 716 (1922). 

This statute is not applicable to gifts or 
advancements made by the husband to his 
wife; where a husband purchases land 
and takes the deed therefore in the name 
of his wife, there is a presumption that he 
intends to make an advancement to her 
and the law does not imply a promise or 
obligation on her part to refund the money 
or to divide the property purchased, or to 
hold the same in trust for him. Biddle v. 
Biddle, 206 Ark. 623, 177 S.W.2d 32 
(1944). 

A conveyance by the husband in antici- 
pation of the wife's suit for divorce, and to 
prevent her from recovering alimony, is 
fraudulent and may be set aside. Dowell v. 
Dowell, 207 Ark. 578, 182 S.W.2d 344 
(1944). 

Presumption of a gift of the money to 
the wife was overcome by the fact that 
deed to property subsequently acquired 
was taken in the husband's name. An- 
gelletti v. Angelletti, 209 Ark. 991, 193 
S.W2d 330 (1946). 

Deed interest in lease by husband to 
wife in consideration of dismissal of di- 
vorce proceeding by wife and as evidence 
of good faith of husband was not a deed in 



consideration or by reason of their mar- 
riage. Turner v. Turner, 219 Ark. 259, 243 
S.W.2d 22 (1951). 

In suit for divorce by wife the husband 
was not entitled to recover on cross-com- 
plaint for return of real estate transferred 
to wife during marriage, if transfer was 
for the purpose of defrauding the creditors 
of the husband. McClure v. McClure, 220 
Ark. 312, 247 S.W2d 466 (1952). 

Evidence sufficient to support the trial 
court's finding that the transfer of money 
to wife was not a gift, voluntarily made, 
but rather was the product of a confidence 
betrayed or influence abused. Marshall v. 
Marshall, 271 Ark. 116, 607 S.W2d 90 (Ct. 
App. 1980). 

Where evidence showed that after the 
parties separated and the husband filed 
for divorce the husband conveyed his in- 
terest in their home to her it was properly 
held that upon their subsequent divorce 
the home was not marital property but 
was the wife's separate property because 
the husband had freely and voluntarily 
executed the conveyance to her. Smith v. 
Smith, 6 Ark. App. 252, 640 S.W2d 458 
(1982). 

House held to be wife's separate prop- 
erty where husband signed deed, transfer- 
ring real property to wife, and filed it for 
record, where although he continued to 
reside there, wife paid all real estate and 
personal property taxes, insurance and 
the mortgage, and where there was no 
evidence wife said she would deed the 
home back. Cole v. Cole, 53 Ark. App. 140, 
920S.W2d32 (1996). 

Trial court erred in declaring that cou- 
ple's home was marital property where it 
had been deeded to the wife in 1982; there 
was no evidence that the wife agreed to do 
anything as an inducement or consider- 
ation for the transfer of property, the deed 
was immediately recorded, and there was 
no discussion of the wife deeding the prop- 
erty back to the husband. Horton v. Hor- 
ton, 92 Ark. App. 22, 211 S.W3d 35 (2005). 

In the property division following a di- 
vorce, the couple's marital residence was 
the wife's separate property because the 
husband deeded the house to her and 
there was nothing to indicated that the 
husband would regain an interest in the 
house or that the wife agreed to do any- 
thing in consideration for the transfer. 
Horton v. Horton, 92 Ark. App. 22, 211 
S.W3d 35 (2005). 



253 



DIVORCE AND ANNULMENT 



9-12-315 



Debts. 

Where the divided property is mort- 
gaged, each takes subject thereto. Crosser 
v. Crosser, 121 Ark. 64, 180 S.W. 337 
(1915). 

Where debts were joint debts of mar- 
riage, wife required to share equally in 
income tax indebtedness on corporate 
fund. McMurtray v. McMurtray, 275 Ark. 
303, 629 S.W.2d 285 (1982). 

In a divorce action, chancellor was not 
required to divide the parties' debts, that 
is, to consider each debt and assign a 
party to pay; however, he was obligated to 
consider those debts in deciding the ques- 
tions of alimony, support for the children, 
and perhaps the division of the property. 
Hackett v. Hackett, 278 Ark. 82, 643 
S.W2d 560 (1982). 

A chancellor has the power to adjust 
marital debts as between the parties al- 
though this authority is not expressly 
given by the Code. Warren v. Warren, 33 
Ark. App. 63, 800 S.W2d 730 (1990). 

If, during the parties' marriage, the 
indebtedness held against one spouse's 
non-marital properties was greatly re- 
duced through payments made with mari- 
tal funds, this section permits the chan- 
cellor to award the other spouse one-half 
of the reduction in indebtedness, either as 
an increase in value of non-marital prop- 
erty pursuant to subdivision (a)(2) of this 
section, or as a transformation of non- 
marital property into marital property 
through the investment of marital funds 
pursuant to subdivision (a)(1)(A) of this 
section. Box v. Box, 312 Ark. 550, 851 
S.W.2d 437 (1993). 

A chancellor has no authority to deter- 
mine the validity of an obligation to a 
third party who is not a party to the 
divorce. Grace v. Grace, 326 Ark. 312, 930 
S.W2d 362 (1996). 

Questions about marital debts, and 
whether they should be "considered" as 
liabilities under subdivision (a)(l)(A)(vii) 
of this section in assigning marital prop- 
erty, are questions of fact. Grace v. Grace, 
326 Ark. 312, 930 S.W2d 362 (1996). 

Credit card debts incurred by one party 
during the period of the parties' legal 
separation were marital debts that the 
chancellor had discretion to divide be- 
tween the parties. Schumacher v. Schu- 
macher, 66 Ark. App. 9, 986 S.W2d 883 
(1999). 



The trial court did not err when it held 
each party responsible for half of a stock 
margin debt where the husband testified 
that the debt was incurred to finance cost 
overruns on the construction of the par- 
ties' residence, for furnishing the house, 
and generally to pay for the parties' lif- 
estyle and living expenses, and the wife 
did not refute this in her own testimony 
and, indeed, confirmed the high cost of the 
house and the furnishings. Hunt v. Hunt, 
341 Ark. 173, 15 S.W.3d 334 (2000). 

Although this section did not expressly 
give the chancellor the power to allocate 
marital debts as between the parties, the 
power was implied and to ignore debts 
would nullify divorce effectiveness and 
leave an essential item of divorce dispute 
unresolved. Ellis v. Ellis, 75 Ark. App. 173, 
57 S.W.3d 220 (2001). 

This section does not apply to the divi- 
sion of marital debts, hence, in Arkansas, 
there is no presumption that an equal 
division of debts must occur; accordingly, 
the trial judge's unequal division of the 
marital debts due to the disparity between 
the parties' incomes and their relative 
abilities to pay the debts was affirmed. 
Williams v. Williams, 82 Ark. App. 294, 
108 S.W3d 629 (2003). 

Trial court abused its discretion in or- 
dering the parties to each pay one-half of 
the marital debt in a divorce proceeding as 
it was not economically feasible for the 
wife to use the property awarded to her as 
half of the marital property in order to pay 
half of the debt; the husband had the 
ability to earn substantially more income 
than she did. Bailey v. Bailey, 97 Ark. App. 
96, 244 S.W3d 712 (2006). 

Trial court did not err in not awarding a 
husband interest accrued on a credit card 
after holding that the husband was en- 
titled to a payment from his former wife in 
the amount of $1,413 because the hus- 
band admitted that he had charged addi- 
tional items on the credit card, which were 
included in the payoff, although he did not 
have any documentation of the amounts 
that he charged. Lyons v. Mclnvale, 98 
Ark. App. 433, 256 S.W.3d 512 (2007). 

Designation by Decree. 

This section will not affect a husband's 
ownership of property, upon a divorce be- 
ing granted to his wife, until the property 
is designated by the decree. Hix v. Sun 
Ins. Co., 94 Ark. 485, 127 S.W. 737 (1910). 



9-12-315 



FAMILY LAW 



254 



A decree of divorce which provides that 
"all property not disposed of at the com- 
mencement of this action which either 
party hereto obtained from or through the 
other during the marriage" shall be re- 
stored, refers only to the separate prop- 
erty of the parties. Dawson v. Mays, 159 
Ark. 331, 252 S.W. 33 (1923). 

Decree awarding wife one-third interest 
for life in oil leases and describing land 
covered by oil lease was in compliance 
with this section. Turner v. Turner, 219 
Ark. 259, 243 S.W.2d 22 (1951). 

Dower and Curtesy. 

Divorce bars dower. Wood v. Wood, 59 
Ark. 441, 27 S.W. 641 (1894). 

The purpose of this statute was to put 
an end to all controversies as to dower 
rights. Beene v. Beene, 64 Ark. 518, 43 
S.W. 968 (1898); Kendall v. Crenshaw, 116 
Ark. 427, 173 S.W. 393 (1915). 

Generally a divorce by a court having 
jurisdiction terminates all obligations of 
either party to the other, cutting off the 
wife's right of dower and the husband's 
tenancy by the curtesy. Biddle v. Biddle, 
206 Ark. 623, 177 S.W2d 32 (1944). 

Wife who obtained a divorce could not 
claim dower for the first time on appeal. 
Orr v. Orr, 206 Ark. 844, 177 S.W.2d 915 
(1944). 

In considering who is the injured party 
under § 9-12-301(5) (subsequently 
amended in 1991), the court is not re- 
quired to make a full award of dower but 
may reduce the dower in keeping with the 
equities of the case. Narisi v. Narisi, 233 
Ark. 525, 345 S.W.2d 620 (1961). 

The statutory property division is con- 
sidered as dower. Alston v. Bitely, 252 Ark. 
79, 477 S.W.2d 446 (1972). 

Election of Remedy. 

Where wife brought an action for annul- 
ment of the marriage and for establish- 
ment of a constructive trust and reforma- 
tion of a deed in her favor and where the 
proof was insufficient to support the equi- 
table lien theory, she could not then at- 
tempt to claim any of the benefits avail- 
able to divorced persons under this section 
either directly or indirectly. Mclntire v. 
Mclntire, 270 Ark. 381, 605 S.W2d 474 
(Ct. App. 1980). 

Fraud. 

Though this section does not authorize 
a division of personal property fraudu- 



lently removed from the state by the hus- 
band, a court of equity has power to de- 
clare the lien under its general power to 
grant relief from fraud. Austin v. Austin, 
143 Ark. 222, 220 S.W. 46 (1920). 

Where a husband, in contemplation of 
his wife's suit for divorce, fraudulently 
conveyed his land and departed from the 
state, taking his personal property with 
him, the value of the personal property 
should be considered in determining her 
share of his property and the value of the 
real property declared to be a lien on the 
land. Wilson v. Wilson, 163 Ark. 294, 259 
S.W. 742 (1924). 

Evidence did not clearly show a fraudu- 
lent plan or scheme on part of the wife to 
obtain husband's property and was not 
sufficient to support a finding of fraud 
authorizing cancellation of deed to prop- 
erty voluntarily conveyed to wife. Biddle v. 
Biddle, 206 Ark. 623, 177 S.W2d 32 
(1944). 

Where testimony supported finding 
that chattel mortgage was executed in 
fraud of and to defeat the wife's marital 
rights, the wife was entitled to her inter- 
est in the personalty free from the mort- 
gage. Dowell v. Dowell, 207 Ark. 578, 182 
S.W2d 344 (1944). 

In a federal diversity action by a judg- 
ment creditor to recover fraudulently 
transferred assets, the district court was 
under no obligation to consider that a 
state court approved a property settle- 
ment agreement as equally dividing the 
divorcing parties' assets. FDIC v. Bell, 106 
F.3d 258 (8th Cir. 1997), cert, denied, 
Hewlett-Packard Co. v. Repeat-O-Type 
Stencil Mfg. Corp., 523 U.S. 1022, 118 S. 
Ct. 1304, 140 L. Ed. 2d 470 (1998). 

Jurisdiction. 

The filing of a complaint describing real 
property gives the court jurisdiction over 
it for the purpose of making an award in 
accordance with the statute; no attach- 
ment or other method of sequestration is 
necessary in order for the court to acquire 
jurisdiction. Allen v. Allen, 126 Ark. 164, 
189 S.W. 841 (1916). 

Description of property in pleadings is 
unnecessary to confer jurisdiction. Heg- 
wood v. Hegwood, 133 Ark. 160, 202 S.W. 
35 (1919). 

Where a wife's complaint for divorce 
asked a division of property, the court 
acquired jurisdiction in rem of the hus- 



255 



DIVORCE AND ANNULMENT 



9-12-315 



band's property, though there was no per- 
sonal service on the defendant nor seizure 
of the property under attachment or oth- 
erwise. Austin v. Austin, 143 Ark. 222, 220 
S.W. 46 (1920). 

A chancellor loses the authority to dis- 
tribute property not mentioned in the 
original decree after the decree has be- 
come final. Jones v. Jones, 26 Ark. App. 1, 
759 S.W.2d 42 (1988). 

This section does not authorize a divi- 
sion of marital property after the divorce 
decree has been entered, in the absence of 
fraud or other grounds for relief from the 
original judgment. Jones v. Jones, 26 Ark. 
App. 1, 759 S.W.2d 42 (1988). 

To the extent a spouse acquires an en- 
forceable right during the marriage to 
recover fees under a contingency fee con- 
tract, the spouse acquired marital prop- 
erty; any difficulty in valuing contingency 
fee contracts may be solved by reserving 
jurisdiction in the trial court in order to 
await the outcome of the underlying ac- 
tions. McDermott v. McDermott, 336 Ark. 
557, 986 S.W.2d 843 (1999). 

Legislative Intent. 

Nothing in this section suggests the 
legislature intended this provision to have 
any effect except with respect to divorce. 
Ellis v. Ellis, 315 Ark. 475, 868 S.W.2d 83 
(1994). 

Specific enumeration of the factors in 
subdivision (a)(1) of this section does not 
preclude a trial court from considering 
other relevant factors where exclusion of 
other factors would lead to absurd results 
or deny the intent of the legislature to 
allow the court to make an equitable divi- 
sion of property. Coombe v. Coombe, 89 
Ark. App. 114, 201 S.W.3d 15 (2005). 

Marital Property. 

Trial court erred in holding that a wife 
had no marital interest in her former 
husband's full retirement benefits that 
had vested during marriage because the 
decree provided that the parties were to 
"divide equally the retirement which ac- 
crued during the marriage" and the wife 
was entitled to share in all of the hus- 
band's retirement benefits that accrued 
prior to the date the decree was filed not 
as of the date of the hearing as the hus- 
band claimed. Allen v. Allen, 99 Ark. App. 
292, 259 S.W.3d 480 (2007). 

Trial court did not err in a divorce 
action in equally dividing, as marital 



property, 20 acres of land between the 
parties where a quitclaim deed executed 
by the husband's father to the parties, as 
husband and wife, was presumed deliv- 
ered because it was recorded. The hus- 
band failed to rebut the presumption of 
delivery. Baldridge v. Baldridge, 100 Ark. 
App. 148, 265 S.W.3d 146 (2007). 

Although the court concluded that an 
insured and her ex-husband were equal 
co-owners of a fire-destroyed house, it ex- 
ercised its discretion under subdivision 
(a)(1)(A) of this section and awarded the 
insured 69% of the funds deposited by an 
insurance company with the court: (1) the 
insured sued the insurance company after 
it refused to pay her claim under her 
property insurance policy; (2) the ex-hus- 
band intervened in the suit after the judg- 
ment entered against the company was 
affirmed on appeal; (3) the insured was 
entitled to a credit for the post-fire mort- 
gage payments that she made because she 
was not legally obligated to make those 
payments and they benefitted the ex-hus- 
band, as those payments increased the 
amount of insurance policy proceeds avail- 
able after the mortgage balance was paid 
off; (4) the insured was entitled to receive 
$15,000 to compensate her for her time 
and expense in suing the insurance com- 
pany; (5) the insured was also entitled to 
recover the entire 12% penalty paid by the 
company under § 23-79-208(a)(l), given 
the fact that the ex-husband had not ac- 
tively participated in attempting to obtain 
payment from the insurance company; 
and (6) the insured could not recover at- 
torneys fees from the ex-husband pursu- 
ant to § 23-79-208(a)(D or § 23-79-209(a) 
because those statutes allowed the recov- 
ery of fees from insurance companies. 
Tweedle v. State Farm Fire & Cas. Co., — 
F. Supp. 2d — , 2008 U.S. Dist. LEXIS 
63324 (July 22, 2008). 

Increase in value of the husband's lim- 
ited partnership's stock brokerage ac- 
counts was not his separate property 
where the husband's efforts, which re- 
sulted in the increase in the value of the 
accounts, caused the increase to be classi- 
fied as marital property. Brown v. Brown, 
373 Ark. 333, 284 S.W.3d 17 (2008). 

Default judgment was set aside under 
Ark. R. Civ. P. 55(c)(3) where a former 
husband deceived his former wife into 
thinking a compromise had been reached 
and procured her non-attendance and fail- 



9-12-315 



FAMILY LAW 



256 



ure to answer a complaint; the distinction 
between intrinsic and extrinsic fraud had 
been abolished. Moreover, her assertion 
that she received nothing in a property 
distribution was sufficient to raise a meri- 
torious defense due to the presumptions 
under subdivision (a)(1)(A) and subsection 
(b) of this section. West v. West, 103 Ark. 
App. 269, 288 S.W3d 680 (2008). 

In a divorce action, the trial court did 
not err in awarding the wife half of the 
value of the husband's construction busi- 
ness because the trial court's valuation of 
the business was within the range of ex- 
pert testimony; the trial court did not 
assign any goodwill to the value it found 
for the business. Cummings v. Cummings, 
104 Ark. App. 315, — S.W.3d — (2009). 

In a divorce action, the trial court did 
not err in determining that the wife was 
entitled to one-half of the husband's civil 
service retirement benefits; the trial court 
was not required to consider the amount 
the husband might have drawn if partici- 
pating in the social security system. Jack- 
son v. Jackson, — Ark. App. — , — S.W3d 
— , 2009 Ark. App. LEXIS 289 (Apr. 1, 
2009). 

Trial court properly ruled that a wife 
was not entitled to a husband's funds 
because they were disability income 
rather than retirement income; the wife's 
entitlement to retirement benefits, as con- 
templated under the divorce decree, 
would occur when the husband was paid 
benefits that were vested, irrevocable, or 
permanent in nature instead of tied to 
whether or not he could work. Hatch v. 
Hatch, —Ark. App. — , — S.W.3d — , 2009 
Ark. App. LEXIS 367 (Apr. 29, 2009). 

— In General. 

Marital property is marital property 
whether it is voluntarily or involuntarily 
acquired. Morrison v. Morrison, 286 Ark. 
353, 692 S.W2d 601 (1985). 

This section requires that marital prop- 
erty be divided at the time the divorce is 
granted. Jones v. Jones, 26 Ark. App. 1, 
759 S.W.2d 42 (1988). 

Where transactions result in great dif- 
ficulty in tracing the manner in which 
nonmarital and marital property have 
been commingled, the property acquired 
in the final transaction may be declared 
marital property. Boggs v. Boggs, 26 Ark. 
App. 188, 761 S.W.2d 956 (1988). 

Husband's investment in a business op- 
erated by his sons was marital property 



because the money came from a joint 
account and the wife could be awarded 
portion of accounts receivable from the 
sons' failed business venture as it was not 
equitable to the wife to have the classifi- 
cation of this asset turn on the enmity 
between the parties, and the fact that a 
receivable may not be collectable reduced 
its net value but did not make it non- 
marital property. Fair v. Farr, 89 Ark. 
App. 196, 201 S.W3d 417 (2005). 

Contribution of each party in the acqui- 
sition of marital property is a factor to be 
considered by the trial judge in making a 
division of marital property, however, it 
should not be the sole factor considered; 
thus, the court stated that, to the extent 
that Stout v. Stout, 4 Ark. App. 266, 630 
S.W.2d 53 (1982) was in conflict with this 
opinion, it was overruled. Baxley v. Bax- 
ley, 92 Ark. App. 247, 212 S.W.3d 8 (2005). 

In a divorce action, a trial court erred 
when it found that a travel trailer in 
which a former husband lived with his 
girlfriend was marital property under 
subsection (b) of this section when there 
was no evidence that indicated that the 
husband had any ownership interest in 
the trailer. Taylor v. Taylor, 369 Ark. 31, 
250 S.W.3d 232 (2007). 

— Accounts Receivable. 

Accounts receivable may be treated as a 
marital asset with a provable net present 
value. Warren v. Warren, 270 Ark. 163, 
603 S.W2d 472 (Ct. App. 1980). 

Evidence insufficient to show that chan- 
cellor did not take accounts receivable into 
consideration in making the property di- 
vision. Warren v. Warren, 270 Ark. 163, 
603 S.W2d 472 (Ct. App. 1980). 

Accounts receivable, fees, commissions 
or other property not in hand on the date 
of the divorce will not necessarily be ex- 
cluded from being considered marital 
property. If such delayed assets are in 
keeping with the usual course of business 
or conduct, there is no reason to hold they 
are marital property; however, if there is 
evidence of fraud or other intent to delay 
receipt of the property in order to exclude 
it from consideration at the time of di- 
vorce, it may well be equitable to treat it 
as having been acquired during the mar- 
riage. Potter v. Potter, 280 Ark. 38, 655 
S.W.2d 382 (1983), overruled in part, Day 
v. Day, 281 Ark. 261, 663 S.W2d 719 
(1984), overruled in part, Meeks v. Meeks, 
290 Ark. 563, 721 S.W2d 653 (1986). 



257 



DIVORCE AND ANNULMENT 



9-12-315 



Fees earned by husband which became 
payable after the date of marriage and 
prior to divorce were marital property; 
however, fees which had not yet been 
collected after divorce were not marital 
property but were separate property of 
husband. Potter v. Potter, 280 Ark. 38, 655 
S.W.2d 382 (1983), overruled in part, Day 
v. Day, 281 Ark. 261, 663 S.W.2d 719 
(1984), overruled in part, Meeks v. Meeks, 
290 Ark. 563, 721 S.W.2d 653 (1986). 

Accounts receivable are marital prop- 
erty. Meeks v. Meeks, 290 Ark. 563, 721 
S.W.2d 653 (1986). 

— Bonus. 

Where husband's bonus accrued and, 
therefore, was acquired during his mar- 
riage to wife, chancellor abused his discre- 
tion in finding that none of bonus was 
marital property. Wilson v. Wilson, 294 
Ark. 194, 741 S.W.2d 640 (1987). 

Bonus which accrued during the par- 
ties' marriage is marital property subject 
to division. Tortorich v. Tortorich, 50 Ark. 
App. 114, 902 S.W.2d 247 (1995), dis- 
missed, 324 Ark. 128, 919 S.W2d 213 
(1996). 

— Capital Accounts. 

Where there was no evidence that the 
former husband had a vested interest in 
the capital account with his employer that 
was fully distributive upon the date of the 
parties' divorce, the former wife was not 
entitled to any portion of that account. 
Hackett v. Hackett, 278 Ark. 82, 643 
S.W2d 560 (1982). 

— Commissions. 

Insurance policy renewal commissions 
were income generated by corporation 
which was nonmarital property, and thus, 
the corporation's insurance policy renewal 
commissions were themselves, pursuant 
to subdivision (b)(7) of this section, ex- 
empt from the definition of marital prop- 
erty. Dalrymple v. Dalrymple, 74 Ark. App. 
372, 47 S.W3d 920 (2001). 

— Disability Income. 

Disability payments received by the 
husband did not lose their status as sepa- 
rate property when they were deposited in 
a joint checking account where the hus- 
band testified that the wife only wrote 
checks on the joint checking account after 
first discussing it with him, that the par- 
ties understood the separate nature of 



their checking accounts, and that he had 
not intended to give the wife an interest in 
the funds in the joint checking account. 
McKay v. McKay, 66 Ark. App. 268, 989 
S.W2d 560 (1999). 

Where monthly disability income ben- 
efits had accrued to former husband, the 
benefits were a marital asset subject to 
division, and trial court erred in finding 
they had no cash value and awarding the 
asset solely to former husband. Frigon v. 
Frigon, 81 Ark. App. 314, 101 S.W3d 879 
(2003). 

— Employment Compensation. 

A cash advance paid to husband by 
husband's employer, acquired after the 
parties separated, was compensation for 
future services and contingent upon hus- 
band's future performance; thus, it was 
not earned during the marriage and was 
not marital property. O'Neal v. O'Neal, 55 
Ark. App. 57, 929 S.W2d 725 (1996). 

When husband was awarded Federal 
Employee Liability Act proceeds as a re- 
sult of permanent disabilities he suffered 
as a railroad engineer, the chancery court 
did not err in determining that these 
proceeds were non-marital property, and 
that husband was entitled to all the pro- 
ceeds. Collins v. Collins, 347 Ark. 240, 61 
S.W3d 818 (2001). 

Money accumulated in the husband's 
Deferred Retirement Option Plan during 
the parties' marriage constituted marital 
property of which the wife was entitled to 
a 50 percent interest. Dial v. Dial, 74 Ark. 
App. 30, 44 S.W3d 768 (2001). 

— Enhanced Business Career. 

A husband's enhanced business career 
did not qualify as marital property subject 
to distribution. Meinholz v. Meinholz, 283 
Ark. 509, 678 S.W2d 348 (1984). 

Medical degree, license or increased 
earnings capacity did not qualify as mari- 
tal property. Wilson v. Wilson, 294 Ark. 
194, 741 S.W2d 640 (1987). 

— Estates by Entirety. 

Where wife's property prior to the mar- 
riage was conveyed to husband and wife 
after marriage as tenants by the entirety 
but not in consideration of the act of 
marriage, the wife was not entitled to be 
restored as sole owner. Phillips v. Phillips, 
236 Ark. 225, 365 S.W2d 261 (1963). 

Where promissory notes arising out of 
the sale of a farm were payable to both 



9-12-315 



FAMILY LAW 



258 



parties and thus were entireties property, 
it was error for the chancery court to 
award the husband a greater share of the 
notes than the wife as a means of equal- 
izing differences in value of real property 
awarded the parties. Ramsey v. Ramsey, 
259 Ark. 16, 531 S.W.2d 28 (1975). 

Where the chancellor set aside the con- 
veyance by husband which created an 
estate by the entirety in certain property, 
the property reverted to ownership by 
husband individually and the trial court 
could properly determine that the prop- 
erty was not "marital property" and that 
the wife should not share in it. Chrestman 
v. Chrestman, 4 Ark. App. 281, 630 S.W2d 
60 (1982). 

This section is not applicable to prop- 
erty owned as tenants by the entirety. 
Bramlett v. Bramlett, 5 Ark. App. 217, 636 
S.W2d 294 (1982). 

This section does not require that a 
home owned as an estate by the entirety 
be sold at the time of the divorce. Bratcher 
v. Bratcher, 5 Ark. App. 250, 635 S.W.2d 
278 (1982). 

The division of property held as tenants 
by the entirety is governed by § 9-12-317 
rather than this section; § 9-12-317 is the 
only statutory authority for the division of 
tenancies by the entirety, and it provides 
for an equal division of the property with- 
out regard to gender or fault. Therefore 
chancellor erred in dividing property pur- 
suant to this section. Lyle v. Lyle, 15 Ark. 
App. 202, 691 S.W2d 188 (1985). 

When property, personal or real, is 
placed in the names of a husband and 
wife, the presumption arises that they 
own the property as tenants by the en- 
tirety, and thus clear and convincing evi- 
dence is required to overcome the pre- 
sumption that a spouse depositing money 
in joint account did not intend a gift or 
one-half interest to the other spouse. 
Boggs v. Boggs, 26 Ark. App. 188, 761 
S.W.2d 956 (1988). 

Where parties' residence is held as a 
tenancy by the entirety, that estate is 
automatically dissolved when the final 
decree is rendered, unless the chancellor 
specifically provides otherwise, pursuant 
to § 9-12-317. Creson v. Creson, 53 Ark. 
App. 41, 917 S.W2d 553 (1996). 

Bank account held not to be owned as 
tenants by the entirety. Cole v. Cole, 53 
Ark. App. 140, 920 S.W2d 32 (1996). 



— Exchange for Property. 

In considering subdivision (b)(2) of this 
section, the "exchange" provision, only 
that portion of the property acquired dur- 
ing marriage in exchange for the nonmari- 
tal property should be set aside as non- 
marital property. An exchange of a 
nonmarital interest for other property af- 
ter marriage will yield only a nonmarital 
interest proportionate in value in the 
newly acquired property. Jackson v. Jack- 
son, 298 Ark. 60, 765 S.W2d 561 (1989). 

— Farm Equipment. 

Farm equipment was separate property 
of the husband where he either owned it 
prior to the marriage or acquired it in 
exchange for other equipment owned prior 
to the marriage. Thomas v. Thomas, 68 
Ark. App. 196, 4 S.W3d 517 (1999). 

— Furniture. 

Where, in a divorce suit, it was shown 
that the wife with her own means paid 
half of the price of furniture, a decree 
awarding the furniture to the husband 
was erroneous, the wife being entitled to 
an equal interest therein. Mcllroy v. Mcll- 
roy, 191 Ark. 45, 83 S.W2d 550 (1935). 

Award to husband of furniture which 
was in the homestead at the time of the 
marriage was not error where record did 
not show that wife had not received in 
value an amount equaling one-third of 
husband's personalty. Orr v. Orr, 206 Ark. 
844, 177 S.W.2d 915 (1944). 

—Gifts. 

Where a husband advances money to 
improve his wife's separate property there 
is a rebuttable presumption that a gift 
was intended. Carrick v. Carrick, 13 Ark. 
App. 42, 679 S.W2d 800 (1984). 

A gift acquired by either spouse subse- 
quent to the marriage is excluded from the 
definition of marital property which is 
subject to division upon divorce. Lyons v. 
Lyons, 13 Ark. App. 63, 679 S.W2d 811 
(1984). 

Evidence insufficient to find that prop- 
erty acquired by husband was anything 
other than a gift. Layman v. Layman, 292 
Ark. 539, 731 S.W2d 771 (1987). 

Subdivision (b)(1) of this section does 
not except from marital property defini- 
tion any income from, or increased value 
of, a gift. Wagoner v. Wagoner, 294 Ark. 82, 
740 S.W2d 915 (1987). 



259 



DIVORCE AND ANNULMENT 



9-12-315 



This section does not authorize a chan- 
cellor to divide gift property received by 
one spouse during marriage. Hale v. Hale, 
307 Ark. 546, 822 S.W.2d 836 (1992). 

Where husband received gift property 
during marriage, which he volunteered as 
security for a loan consolidation, it was 
appropriate for the chancellor to apply the 
gift property to satisfy the loan consolida- 
tion debt, but not to pay any other marital 
debts. Hale v. Hale, 307 Ark. 546, 822 
S.W.2d 836 (1992). 

Where it was clear from the facts and 
circumstances that husband had made 
some sort of gift to wife of a ring, valued at 
$1,105, before the marriage, he divested 
himself of any interest in the ring; thus, 
the trial court erred in awarding the ring 
to the husband. Weatherly v. Weatherly, 
87 Ark. App. 291, 190 S.W3d 294 (2004). 

— Goodwill. 

For goodwill to be marital property, it 
must be a business asset with value inde- 
pendent of the presence or reputation of a 
particular individual — an asset which 
may be sold, transferred, conveyed, or 
pledged. Whether goodwill is marital 
property is a fact question, and to estab- 
lish goodwill as marital property and di- 
visible as such, a party must produce 
evidence establishing salability or mar- 
ketability of that goodwill as a business 
asset of a professional practice. Wilson v. 
Wilson, 294 Ark. 194, 741 S.W2d 640 
(1987). 

Husband's professional association had 
no goodwill value independent of hus- 
band's presence and reputation. A solo 
professional practice may have business 
goodwill independent of the personal 
goodwill of the practitioner. Wife had the 
burden of proving that husband's profes- 
sional association had business goodwill 
independent of husband's personal good- 
will if it was to be considered a marital 
asset. Tortorich v. Tortorich, 50 Ark. App. 
114, 902 S.W.2d 247 (1995), dismissed, 
324 Ark. 128, 919 S.W.2d 213 (1996). 

— Homestead. 

The court in granting a divorce may 
treat the homestead as any other prop- 
erty. Biddle v. Biddle, 206 Ark. 623, 177 
S.W.2d 32 (1944). 

In the absence of statutory provisions to 
the contrary, the wife has no homestead 
rights in the husband's property after a 



divorce unless the right thereto is re- 
served to her by the decree and it makes 
no difference whether the decree was ob- 
tained by the husband or by the wife. 
Biddle v. Biddle, 206 Ark. 623, 177 S.W.2d 
32 (1944). 

Courts granting decrees of divorce may 
award the possession of the homestead to 
either of the parties for such time and 
upon such terms and conditions as appear 
to be equitable and just. Orr v. Orr, 206 
Ark. 844, 177 S.W2d 915 (1944); Schaefer 
v. Schaefer, 235 Ark. 870, 362 S.W2d 444 
(1962). 

Decree allowing homestead to husband 
was proper. Orr v. Orr, 206 Ark. 844, 177 
S.W2d 915 (1944). 

A divorce decree giving a wife home- 
stead rights to lands and personal prop- 
erty did not violate section. Whaley v. 
Whaley, 224 Ark. 632, 275 S.W2d 634 
(1955); Fitzgerald v. Fitzgerald, 227 Ark. 
1063, 303 S.W2d 577 (1957). 

Portion of divorce decree refusing to 
award alimony and ordering sale of home- 
stead was against the preponderance of 
the evidence, and wife would be permitted 
to maintain residence until children were 
older with husband paying alimony which 
would be used to make partial mortgage 
payments on home. Warren v. Warren, 270 
Ark. 163, 603 S.W2d 472 (Ct. App. 1980). 

— Identification. 

The trial court had authority to identify 
and determine what was marital property 
and, therefore, properly required that the 
landlords of a store operated by the hus- 
band be made parties to the divorce action 
and that they be enjoined from selling the 
inventory of the store in order to recover 
rent due from the husband. Arnold v. 
Spears, 343 Ark. 517, 36 S.W3d 346 
(2001). 

— Improvements. 

A spouse is entitled to improvements 
made during the marriage on nonmarital 
property if the spouse can prove he or she 
helped make them. Camp v. Camp, 18 
Ark. App. 87, 710 S.W2d 842 (1986). 

The improvements made to the wife's 
house and yard, whether paid for by the 
joint tax refund checks or by the wife's 
income earned during the marriage, were 
marital property. Camp v. Camp, 18 Ark. 
App. 87, 710 S.W2d 842 (1986). 

It would be inequitable to give the hus- 
band an interest in the improvements to 



9-12-315 



FAMILY LAW 



260 



the wife's separate property because, 
while the wife continued to make the 
mortgage payments thereon, the husband 
did not contribute to these payments al- 
though he was saving approximately $250 
in rent each month. Camp v. Camp, 18 
Ark. App. 87, 710 S.W.2d 842 (1986). 

A co-owner who makes improvements to 
the property is generally awarded the 
resulting increase in the value of the prop- 
erty, and not the actual costs of the im- 
provements. Flucht v. Villareal, 28 Ark. 
App. 1, 770 S.W.2d 187 (1989). 

Where parties were only married three 
years before separating, the husband was 
entitled to some benefit by reason of mari- 
tal funds having been used to improve the 
wife's property that she brought into the 
marriage. Weatherly v. Weatherly, 87 Ark. 
App. 291, 190 S.W.3d 294 (2004). 

— Income. 

Any accumulation of income during the 
marriage from the husband's nonmarital 
property constituted marital property; 
thus, the rental income on the husband's 
farmland the year after his separation 
from his wife was not an increase in value 
of his nonmarital property under subdivi- 
sion (b)(5) of this section. Speer v. Speer, 
18 Ark. App. 186, 712 S.W.2d 659 (1986) 
(decision prior to 1989 amendment). 

Income accumulated from nonmarital 
certificate of deposit accounts held to be 
marital property. Wagoner v. Wagoner, 
294 Ark. 82, 740 S.W2d 915 (1987); Boggs 
v. Boggs, 26 Ark. App. 188, 761 S.W.2d 956 
(1988) (decisions prior to 1989 amend- 
ment). 

Wife's salary check and stipend, earned 
subsequent to the marriage, are clearly 
marital property, and should be divided 
pursuant to this section as the chancellor 
believes the equities require. Reed v. 
Reed, 24 Ark. App. 85, 749 S.W2d 335 
(1988). 

— Inheritance. 

There was no transfer to the husband of 
an interest in a money market certificate 
purchased with proceeds from inheritance 
so as to make the certificate subject to 
division upon divorce. Hayse v. Hayse, 4 
Ark. App. 160B, 630 S.W2d 48 (1982). 

Tract of land inherited by the husband 
during the marriage was not subject to 
division in a divorce action. Busby v. 
Busby, 39 Ark. App. 108, 840 S.W.2d 195 
(1992). 



Husband failed to produce clear and 
convincing evidence to rebut the presump- 
tion that inheritance money placed in 
joint account was separate property where 
the records showed that although wife did 
not deposit or withdraw funds from the 
joint account, husband engaged in several 
actions that support a finding that he 
either bestowed a gift of the money to 
wife, or created a tenancy by the entirety 
in it. Creson v. Creson, 53 Ark. App. 41, 
917 S.W.2d 553 (1996). 

The chancellor's finding that the hus- 
band gave the wife an interest in a house- 
boat was not clearly erroneous, notwith- 
standing the husband's contention that he 
used the proceeds of an inheritance to 
purchase the houseboat and did not in- 
tend to make a gift of an interest in it to 
the wife, where the husband testified that, 
after he talked with the seller of the 
houseboat, the seller prepared the bill of 
sale in both parties' names and that he did 
not object because "she was my wife." 
McKay v. McKay, 66 Ark. App. 268, 989 
S.W.2d 560 (1999). 

Although the houseboat was purchased 
from inheritance, it was held jointly and 
the court found that a gift had been made. 
McKay v. McKay, 340 Ark. 171, 8 S.W.3d 
525 (2000). 

— Insurance Proceeds. 

Where wife received proceeds of her 
son's insurance policy after her marriage 
took place but the son had died before the 
marriage took place, insurance proceeds 
were the separate property of the wife. 
Wright v. Wright, 29 Ark. App. 20, 779 
S.W2d 183 (1989). 

Where defendant's employer during the 
marriage provided a long-term disability 
insurance plan for its executives; where 
these benefits were in lieu of workers' 
compensation, and were not awarded as 
benefits for a permanent disability or for 
future medical costs; and where the dis- 
ability entitling the defendant to collect 
the benefits provided by the plan occurred 
during the marriage, the property was 
acquired during the marriage and was 
marital property as defined by statute. 
Dunn v. Dunn, 35 Ark. App. 89, 811 S.W2d 
336 (1991). 

Appellant's disability benefits did not 
meet one of the statutory exceptions con- 
tained in this section and were therefore 
marital property. Scott v. Scott, 86 Ark. 
App. 120, 161 S.W.3d 307 (2004). 



261 



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— Interest. 

Interest earned on nonmarital property 
is marital property and is divided pursu- 
ant to this section. Reed v. Reed, 24 Ark. 
App. 85, 749 S.W.2d 335 (1988) (decision 
prior to 1989 amendment). 

— Joint Enterprise. 

Wife is entitled to half interest in real 
estate and business where she paid por- 
tion of consideration, regardless as to who 
held the legal title. Price v. Price, 217 Ark. 
6, 228 S.W.2d 478 (1950). 

Where it was obvious from the evidence 
that it was the joint efforts of the parties 
which acquired property, it would be ineq- 
uitable to deprive the wife of the legal and 
equitable ownership of one-half interest in 
the property. Nelson v. Nelson, 267 Ark. 
353, 590 S.W2d 293 (1979). 

— Livestock. 

It was error for the chancellor to award 
$50,000 in an investment account, which 
represented the proceeds from a sale of 
cattle which occurred after the parties' 
marriage, to the husband since there was 
no proof that the cattle were the same as 
owned by the husband prior to the mar- 
riage and since the wife actively assisted 
the husband in his cattle farming opera- 
tion. Thomas v. Thomas, 68 Ark. App. 196, 
4 S.W3d 517 (1999). 

In a divorce action, the court erred in 
determining that cattle were not marital 
assets because the cattle were purchased 
by the husband during the parties' mar- 
riage and while they were separated; the 
court should have divided the value of the 
cattle equally pursuant or provided an 
explanation why such a division would not 
be equitable under the circumstances. 
Coombe v. Coombe, 89 Ark. App. 114, 201 
S.W3d 15 (2005). 

— Partnership Assets. 

Wife in a divorce proceeding was en- 
titled to an allowance of one-third in hus- 
band's interest in a partnership. Reed v. 
Reed, 223 Ark. 292, 265 S.W2d 531 
(1954). 

Where husband and wife operated store 
as partners during the marriage the hus- 
band was not entitled to the sole owner- 
ship of the store. Phillips v. Phillips, 236 
Ark. 225, 365 S.W.2d 261 (1963). 

In awarding a divorce to the wife, the 
chancellor should determine the value of a 
husband's interest in a partnership, treat- 



ing accounts receivable as assets having a 
provable fair net present value, resulting 
in a monetary decree in the wife's favor, to 
be enforced if necessary by a charging 
order. Riegler v. Riegler, 243 Ark. 113, 419 
S.W2d 311 (1967); Warren v. Warren, 12 
Ark. App. 260, 675 S.W2d 371 (1984). 

The trial court clearly erred when it 
ordered a former wife's interest in the 
parties' marital home to be applied to the 
net worth of a partnership, a business in 
which she had a lesser interest. Glover v. 
Glover, 4 Ark. App. 27, 627 S.W.2d 30 
(1982). 

A former wife's interest in a partnership 
and its assets, acquired during her mar- 
riage, constituted marital property, de- 
spite the wife's contention that she owned 
no property used in the partnership but 
instead only had a right to half the earn- 
ings of the partnership. Richardson v. Ri- 
chardson, 280 Ark. 498, 659 S.W2d 510 
(1983). 

— Pension, Retirement Pay, Etc. 

An award of one-third of the money held 
by a divorced husband's guardian and 
derived from his pension from military 
service was held not error. Stone v. Stone, 
188 Ark. 622, 67 S.W2d 189 (1934). 

Where portion of husband's contribu- 
tions to a retirement plan were made prior 
to the marriage that portion acquired be- 
fore marriage is his separate property. 
Paulsen v. Paulsen, 269 Ark. 523, 601 
S.W2d 873 (1980), overruled in part, Day 
v. Day, 281 Ark. 261, 663 S.W2d 719 
(1984); Marshall v. Marshall, 285 Ark. 
426, 688 S.W2d 279 (1985). But see, Day 
v. Day, 281 Ark. 261, 663 S.W2d 719 
(1984); Gentry v. Gentry, 282 Ark. 413, 
668 S.W.2d 947 (1984); Womack v. Wom- 
ack, 16 Ark. App. 139, 698 S.W.2d 306 
(1985). 

Military retirement pay is not a fixed 
and tangible asset that may be collected in 
a lump sum, but it terminates at death 
and has no loan, surrender, or redemption 
value, therefore military retirement pay is 
not marital property as contemplated by 
Act 705 of 1979. Paulsen v. Paulsen, 269 
Ark. 523, 601 S.W.2d 873 (1980), over- 
ruled in part, Day v. Day, 281 Ark. 261, 
663 S.W.2d 719 (1984). 

It was improper for the court to deny 
wife one-half of the husband's vested 
rights in a money-purchase pension plan. 
Bachman v. Bachman, 274 Ark. 23, 621 
S.W2d 701 (1981). 



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262 



Evidence sufficient to support the 
court's refusal to divide equally individual 
retirement account in a divorce proceed- 
ing. Stout v. Stout, 4 Ark. App. 266, 630 
S.W.2d 53 (1982). 

Where husband's individual retirement 
account was not fully distributable and 
was established with funds earned by the 
husband, it was not proper for the trial 
court to treat it as marital property. Potter 
v. Potter, 280 Ark. 38, 655 S.W.2d 382 
(1983), overruled in part, Day v. Day, 281 
Ark. 261, 663 S.W.2d 719 (1984), over- 
ruled in part, Meeks v. Meeks, 290 Ark. 
563, 721 S.W.2d 653 (1986). 

A husband's interest in the retirement 
plan sponsored by his employer is marital 
property subject to allocation under this 
section in a divorce action. Day v. Day, 281 
Ark. 261, 663 S.W2d 719 (1984). 

Earnings or other property acquired by 
each spouse must be treated as marital 
property, unless falling within one of the 
statutory exceptions, and neither one can 
deprive the other of any interest in mari- 
tal property by putting it temporarily be- 
yond his or her own control, as by the 
purchase of annuities, participation in a 
retirement plan, or other device for post- 
poning full enjoyment of the property. Day 
v. Day, 281 Ark. 261, 663 S.W.2d 719 
(1984). 

Husband's retirement plan was marital 
property subject to division where all re- 
quirements for receiving benefits, re- 
quired years of service and contributions, 
occurred during the marriage and the 
husband was fully vested and was actu- 
ally receiving benefits at the time of di- 
vorce. Gentry v. Gentry, 282 Ark. 413, 668 
S.W2d 947 (1984). 

A pension is the result of direct or 
indirect efforts expended by one or both 
parties to the marriage; it is additional 
compensation for services rendered for the 
employer and a right acquired during the 
marriage. Hence, equitable considerations 
mandate its inclusion for distribution, 
where the employee has already qualified 
for benefits, and the other spouse, during 
the marriage, has foregone enjoyment of 
that additional compensation represented 
by the cost of the plan, whether or not it 
requires employee contributions. Mein- 
holz v. Meinholz, 283 Ark. 509, 678 S.W2d 
348 (1984). 

Disability retirement benefits are mari- 
tal property. Morrison v. Morrison, 286 
Ark. 353, 692 S.W2d 601 (1985). 



The fact that disability retirement ben- 
efits are paid out of one's own contribu- 
tions plus the contributions of all others 
who are not disabled does not mean they 
are not marital property. Morrison v. Mor- 
rison, 286 Ark. 353, 692 S.W2d 601 
(1985). 

Since the decision in Day v. Day, 281 
Ark. 261, 663 S.W.2d 719 (1984), which 
held that husband's interest in retirement 
plan sponsored by his employer is marital 
property subject to allocation under this 
section, military retirement benefits pay- 
able in the future may be considered mari- 
tal property and subject to division under 
this section. Womack v. Womack, 16 Ark. 
App. 139, 698 S.W.2d 306 (1985). 

Vested retirement benefits not yet due 
and payable are marital property subject 
to division on divorce when based on con- 
tributions made or services rendered dur- 
ing the marriage; thus, retirement ben- 
efits based on service of the husband prior 
to the marriage were his separate prop- 
erty, and those benefits based on service 
after marriage were not mere increase in 
value of separate property, but were mari- 
tal property subject to division. Womack v. 
Womack, 16 Ark. App. 139, 698 S.W.2d 
306(1985). 

Although husband's military pension 
plan was noncontributory, the pension 
was nevertheless, in effect, part of the 
consideration of husband's employment 
contract with the military, i.e., a wage 
substitute. As it was consideration earned 
during the marriage, it constituted mari- 
tal property. Young v. Young, 288 Ark. 33, 
701 S.W2d 369 (1986). 

Although husband entered military ser- 
vice prior to his marriage, subsequent 
military pension benefits accrued during 
marriage were marital property. Young v. 
Young, 288 Ark. 33, 701 S.W.2d 369 
(1986). 

It was not an abuse of the chancellor's 
discretion to award the wife one-half of a 
fractional interest in the husband's retire- 
ment pay, the fraction having a numerator 
of the number of years the parties were 
married during his military service and 
the denominator being the number of 
years the husband had served upon retire- 
ment. Askins v. Askins, 288 Ark. 333, 704 
S.W.2d 632 (1986). 

Nonvested right in military retirement 
did not constitute property under this 



263 



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9-12-315 



section. Durham v. Durham, 289 Ark. 3, 

708 S.W.2d 618 (1986). 

The decisions in Day v. Day, 281 Ark. 
261, 663 S.W.2d 719 (1984) and Young v. 
Young, 288 Ark. 33, 701 S.W.2d 369 
(1986), which held that military retire- 
ment benefits constitute marital property 
to be equally distributed upon divorce, 
would not be applied retroactively to a 
divorce decree which became final four 
years prior to those decisions, because it 
would work a great hardship on the par- 
ties and would defeat the purposes under- 
lying the doctrine of res judicata. Wiles v. 
Wiles, 289 Ark. 340, 711 S.W2d 789 
(1986). 

Federal law did not permit state courts 
to divide military retirement pensions 
pursuant to a divorce settlement until the 
Uniformed Services Former Spouses' Pro- 
tection Act in 1983; however, this act was 
retroactive only to June 26, 1981. Where 
the parties were divorced in February, 
1981, the chancellor was not in error in 
dismissing the portion of the wife's peti- 
tion concerning the military retirement 
pension, because the decree reflected the 
law as it existed at the time of the divorce. 
Hendricks v. Hendricks, 18 Ark. App. 41, 

709 S.W.2d 827 (1986). 
Contributions by employer were not 

marital property when made to ex- 
spouse's profit sharing and pension plans 
after the date of divorce. Wilson v. Wilson, 
294 Ark. 194, 741 S.W2d 640 (1987). 

Spouse's interest in a Major Needs 
Fund, in which all contributions were 
made by his employer, was vested and 
marital property. Guinn v. Guinn, 35 Ark. 
App. 199, 816 S.W2d 629 (1991). 

A spouse upon divorce is entitled to 
share in cost of living adjustments in 
retirement benefits applicable to the per- 
centage of retirement benefits awarded to 
the spouse in the divorce decree. Brown v. 
Brown, 38 Ark. App. 99, 828 S.W2d 601 
(1992). 

The language of this section does not 
include nonvested military benefits. 
Burns v. Burns, 312 Ark. 61, 847 S.W.2d 
23 (1993). 

Wife who remarried her first husband 
was entitled to a percentage of the mili- 
tary retirement pay based upon the total 
number of years she was married to hus- 
band, not just for the number of years of 
the second marriage. Christopher v. 



Christopher, 316 Ark. 215, 871 S.W2d 398 
(1994). 

Where husband placed pension funds in 
the parties' joint account, the presump- 
tion imposed by law was that he intended 
to create a true joint tenancy with wife, 
which presumption was not overcome by 
his subsequent withdrawal of funds and 
placement of them in IRA accounts in his 
individual name. Mathis v. Mathis, 52 
Ark. App. 155, 916 S.W2d 131 (1996). 

For a case showing a detailed account of 
how to calculate wife's share of husband's 
military retirement pay, see Cherry v. 
Cherry, 55 Ark. App. 3 78, 934 S.W2d 936 
(1996). 

Enhancements to a retirement often in- 
crease in the later years and it might be 
inequitable to allow a person who had 
supported the spouse through the lean 
years to be deprived of those later awards, 
and the chancellor has considerable dis- 
cretion to divide marital property other 
than one-half to each party when it is 
equitable to do so; thus the chancellor 
properly considered the increases in wife's 
salary following the separation and di- 
vorce in deciding that they constituted 
legitimate adjustments for retirement 
benefits in which husband could partici- 
pate. Brown v. Brown, 332 Ark. 235, 962 
S.W2d 810 (1998). 

Where the parties were married for the 
last seven of the 33 years that the wife 
was employed, the husband was entitled 
to half of seven thirty-third's of the wife's 
monthly pension benefit. Thomas v. Tho- 
mas, 68 Ark. App. 196, 4 S.W3d 517 
(1999). 

Where the parties were married for the 
last seven of the 33 years that the wife 
was employed, the increase in value of the 
wife's pre-marriage contributions to her 
401(k) plan did not constitute marital 
property. Thomas v. Thomas, 68 Ark. App. 
196, 4 S.W.3d 517 (1999). 

Where the wife's pension plan was a 
contribution plan, the court properly used 
the total contribution method to divide the 
plan, keeping in mind the difference in 
ages between the two parties. Gray v. 
Gray, 352 Ark. 443, 101 S.W3d 816 (2003). 

Pension-plan benefits are marital prop- 
erty to the extent that a spouse had a 
vested interest in those benefits; non- 
vested pension plans are not marital prop- 
erty. Delacey v. Delacey, 85 Ark. App. 419, 
155 S.W3d 701 (2004). 



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264 



Court erred in awarding both retire- 
ment accounts to the wife where the wife's 
disability and need for financial security 
was not more pressing than the husband's 
disability and similar need simply be- 
cause she was the "primary breadwinner" 
and made contributions to the retirement 
accounts. Baxley v. Baxley, 92 Ark. App. 
247, 212 S.W.3d 8 (2005). 

Property owned individually by a debtor 
and co-owned with his non-debtor wife 
became part of the bankruptcy estate; 
accordingly, where a debtor's non-debtor 
wife had filed for divorce post-petition and 
the state court had not entered a divorce 
decree and divided the marital property, 
the wife could not claim any rights or 
"exemptions" to the debtor's retirement 
funds as the wife's rights to the retire- 
ment funds were inchoate at best. In re 
Thomas, 331 B.R. 798 (Bankr. W.D. Ark. 
2005). 

— Personal Injury Claims. 

The $110,000.00 certificate of deposit, 
which represented a lump-sum payment 
for injury to the husband and which was 
titled in the names of both the husband 
and wife, should have been divided 
equally between the husband and wife 
upon divorce. McDonald v. McDonald, 19 
Ark. App. 75, 716 S.W.2d 788 (1986). 

The two future installments of the hus- 
band's personal injury settlement were 
properly classified as marital property. 
McDonald v. McDonald, 19 Ark. App. 75, 
716 S.W.2d 788 (1986). 

The chancellor's refusal to award the 
wife any portion of the two future install- 
ments of the husband's personal injury 
settlement was not against the preponder- 
ance of the evidence, where the chancellor 
recited the factors set forth in subdivision 
(a)(1) of this section and particularly men- 
tioned the severity of the husband's injury 
and the likelihood he would not work 
again, while the wife maintained her abil- 
ity to work. McDonald v. McDonald, 19 
Ark. App. 75, 716 S.W.2d 788 (1986). 

To the extent spouse acquired an en- 
forceable right during the marriage to 
recover for personal injury, he acquired 
marital property. Bunt v. Bunt, 294 Ark. 
507, 744 S.W.2d 718 (1988). 

Except for those benefits from an un- 
liquidated personal injury claim that 
would be for any degree of permanent 
disability or future medical expenses, the 



remaining benefits or elements of damage 
from one's personal injury claim are sub- 
ject to division as marital property pursu- 
ant to subdivision (a)(1)(A) of this section. 
Clayton v. Clayton, 297 Ark. 342, 760 
S.W.2d 875 (1988). 

Wife's claim, that settlement proceeds 
of a personal injury to her late husband 
were marital property, held without merit; 
the funds belonged to his estate, to be 
distributed pursuant to probate law. Ellis 
v. Ellis, 315 Ark. 475, 868 S.W2d 83 
(1994). 

Although former husband was perma- 
nently impaired from any type of gainful 
employment, since the ultimate source of 
his disability could have been traced back 
to the wounds he suffered in World War II 
rather than to a specific "personal injury" 
sustained while employed or in conse- 
quence of a tortious act, his claim for his 
physical condition did not constitute a 
claim for "personal injury" as contem- 
plated by subdivision (b)(6) of this section 
and therefore did not fall within the statu- 
tory marital-property exemption. Mason 
v. Mason, 319 Ark. 722, 895 S.W2d 513 
(1995). 

— Presumption. 

Property acquired by either spouse dur- 
ing the marriage carries the presumption 
of being marital property; the date of the 
acquisition is the key factor, and property 
acquired separately or jointly remains as 
such and must be divided accordingly at 
the time of divorce, unless the court finds 
it is not equitable. Lofton v. Lofton, 23 
Ark. App. 203, 745 S.W.2d 635 (1988). 

Once property, whether personal or 
real, is placed in the names of persons who 
are husband and wife, without specifying 
the manner in which they take, there is a 
presumption that they own the property 
as tenants by the entirety and it takes 
clear and convincing evidence to overcome 
that presumption. Lofton v. Lofton, 23 
Ark. App. 203, 745 S.W.2d 635 (1988). 

Once property is placed equally, in the 
names of both husband and wife, such 
property is presumed to be held by them 
as tenants by the entirety and, thus, mari- 
tal property. Thomas v. Thomas, 68 Ark. 
App. 196, 4 S.W.3d 517 (1999). 

— Property Acquired After 

Separation. 

Wife could not exclude properties 
deeded to her after temporary order as 



265 



DIVORCE AND ANNULMENT 



9-12-315 



marital property acquired by a spouse 
after a legal separation, since there is no 
authority to hold that a temporary order 
is equivalent to legal separation. Schichtel 
v. Schichtel, 3 Ark. App. 36, 621 S.W.2d 
504 (1981). 

Where husband purchased a home 
while separated from his wife, but before 
any divorce or maintenance decree had 
been entered, the house was marital prop- 
erty subject to division. Lee v. Lee, 12 Ark. 
App. 226, 674 S.W.2d 505 (1984). 

Where trial court had entered a tempo- 
rary order prior to divorce action and that 
order did not deal with or affect the dis- 
tribution of the parties' properties, subdi- 
vision (b)(3) of this section was not appli- 
cable and property acquired by the spouse 
after the order was marital property to be 
distributed one-half to each party, unless 
the court found the division inequitable. 
Allen v. Allen, 17 Ark. App. 38, 702 S.W.2d 
819 (1986). 

Assets acquired after separation and 
prior to a grant of divorce are marital 
property and are to be divided giving due 
consideration to the factors enunciated in 
subdivision (a)(1)(A) of this section. Fran- 
klin v. Franklin, 25 Ark. App. 287, 758 
S.W2d 7 (1988); Cavin v. Cavin, 308 Ark. 
109, 823 S.W.2d 843 (1992). 

When a chancellor declines to award a 
divorce and enters nothing more than a 
support order necessitated by a family 
breakup, there is no divorce from bed and 
board, and there is no basis for holding 
that property acquired by the parties 
thereafter is other than marital property 
unless it falls within some other exception 
found in this section. Hadden v. Hadden, 
320 Ark. 480, 897 S.W2d 568 (1995). 

Funds acquired by one party and depos- 
ited into the parties' joint checking ac- 
count prior to their divorce are marital 
property subject to division by the court. 
Schumacher v. Schumacher, 66 Ark. App. 
9, 986 S.W2d 883 (1999). 

— Property Acquired Before 

Marriage. 

In the division of property on granting a 
divorce to the wife, it was error to award 
to the wife sum as restoration of a sum 
received from her by her husband in con- 
sideration of marriage under this section 
where the sum was obtained before mar- 
riage. Oliphant v. Oliphant, 177 Ark. 613, 
7 S.W.2d 783 (1928). 



Although this section provides that the 
increase in value of property acquired 
prior to the marriage remains that party's 
sole and separate property, the chancellor 
may make some other division that he 
deems equitable. Smith v. Smith, 32 Ark. 
App. 175, 798 S.W.2d 442 (1990). 

Although the increase in value in prop- 
erty acquired prior to marriage is not 
marital property, it is appropriate to rec- 
ognize a spouse's contributions toward 
that increase in value when making a 
property division. Smith v. Smith, 32 Ark. 
App. 175, 798 S.W.2d 442 (1990). 

— Real Property. 

Evidence that husband parted with his 
equity in realty before abandoning his 
wife and did not reassert any claim to the 
property until after her death precluded 
the setting aside of the decree awarding 
the property to the wife. Brown v. Brown, 
211 Ark. 241, 200 S.W.2d 488 (1947). 

Award of interest in lands not excessive 
or unreasonable. Cook v. Cook, 233 Ark. 
961, 349 S.W.2d 809 (1961). 

Where the divorce is granted to the 
husband and the equities justify, chancery 
courts have power to award the wife an 
interest in her husband's real property. 
Cook v. Cook, 233 Ark. 961, 349 S.W2d 
809 (1961). 

In a divorce action, a wife was entitled 
to her statutory one-third interest in her 
husband's undivided one-third interest in 
certain realty. McCray v. McCray, 256 Ark. 
868, 514 S.W2d 219 (1974). 

Finding that wife was entitled to receive 
one-half of husband's equitable interest 
amount, was not clearly erroneous or 
clearly against the preponderance of the 
evidence. Warren v. Warren, 270 Ark. 163, 
603 S.W2d 472 (Ct. App. 1980). 

Husband owned a separate interest in 
lot and house which were purchased with 
the proceeds of the sale of his separate 
property owned prior to the marriage. 
Potter v. Potter, 280 Ark. 38, 655 S.W2d 
382 (1983), overruled in part, Day v. Day, 
281 Ark. 261, 663 S.W2d 719 (1984), over- 
ruled in part, Meeks v. Meeks, 290 Ark. 
563, 721 S.W2d 653 (1986). 

Chancellor was correct in finding that 
wife had a marital interest in one half of 
"marital profit," or appreciated value, of 
house, but erred in failing to give her 
credit for that part of the purchase price 
which she contributed through the use of 



9-12-315 



FAMILY LAW 



266 



a joint down payment. Williford v. Willi- 
ford, 280 Ark. 71, 655 S.W.2d 398 (1983). 

Where husband owned house, prior to 
marriage, which was destroyed and re- 
built during marriage, the lot remained 
his separate property and was not "mari- 
tal property"; the rebuilt dwelling did con- 
stitute marital property to the extent that 
joint funds were used to acquire the prop- 
erty. Williford v. Williford, 280 Ark. 71, 
655 S.W.2d 398 (1983). 

Where the former wife acquired prop- 
erty from her mother during the existence 
of the marriage for which the wife paid 
consideration, and where after acquiring 
title to the land the wife sold the timber 
thereon and handed the proceeds over to 
her mother, the chancellor did not err in 
the transaction as a loan and partial re- 
payment and holding the acreage was 
marital property subject to division. Rich- 
ardson v. Richardson, 280 Ark. 498, 659 
S.W2d 510 (1983). 

Where the court found that the husband 
had made an original investment in a 
home prior to marriage the division of the 
proceeds of the home were modified to 
allow him credit for his investment. Mar- 
shall v. Marshall, 285 Ark. 426, 688 
S.W2d 279 (1985). 

Proceeds inherited under the contracts 
for the sale of real properties are not 
marital property as defined in this section, 
nor were they held as tenants by the 
entirety since wife did not deposit them 
into an account so held; therefore, this 
amount is the sole and separate property 
of the wife. Reed v. Reed, 24 Ark. App. 85, 
749 S.W.2d 335 (1988). 

Without evidence of the before-and-af- 
ter value of the property to show the 
existence and extent of any increase in the 
value of the nonmarital property, any re- 
duction in debt on nonmarital property 
was not considered to be marital property 
to be divided equally; instead, the non- 
owning spouse was simply entitled to 
have the marital contribution considered 
in balancing the equities involved in the 
property division. Powell v. Powell, 82 
Ark. App. 17, 110 S.W3d 290 (2003). 

—Stock. 

Stock acquired with funds from joint 
account held to be marital property where 
evidence did not permit having of funds. 
Boggs v. Boggs, 26 Ark. App. 188, 761 
S.W2d 956 (1988). 



Sale of stock is not authorized by this 
section. Hodges v. Hodges, 27 Ark. App. 
250, 770 S.W2d 164 (1989). 

Where stock, acquired before marriage 
was exchanged for the balance existing in 
a profit sharing trust on the date of the 
plaintiffs retirement, and there were sub- 
stantial increases in the value of both the 
profit sharing account prior to distribu- 
tion and the stock obtained at the time of 
distribution, the chancellor erred in ruling 
that all of the stock was marital property 
under Arkansas law. Cate v. Cate, 35 Ark. 
App. 79, 812 S.W.2d 697 (1991). 

It was error for the chancellor to find 
that shares of stock and certificates of 
deposit were separate nonmarital prop- 
erty where they were held jointly by the 
parties and there was no evidence to rebut 
the presumption that they were held as 
tenants by the entirety. Thomas v. Tho- 
mas, 68 Ark. App. 196, 4 S.W3d 517 
(1999). 

Husband's stock in corporation he ob- 
tained in exchange for assets of his sole 
proprietorship, which he had operated for 
nearly 30 years before marrying the wife, 
was nonmarital property under subdivi- 
sion (b)(2) of this section, as husband 
testified that strictly nonmarital property, 
the sole proprietorship's assets, was used 
to acquire the stock and the wife did not 
dispute that assertion. Dalrymple v. Dal- 
rymple, 74 Ark. App. 372, 47 S.W3d 920 
(2001). 

Trial judge did not err in crediting the 
value of the husband's appraiser over the 
wife's appraiser in determining the fair 
market value of the husband's medical 
clinic and surgery center. Williams v. Wil- 
liams, 82 Ark. App. 294, 108 S.W3d 629 
(2003). 

Trial court did not err in valuing stock 
for the purpose of distribution by includ- 
ing a minority discount by taking the price 
per share that had been used in a previous 
sale and used in other offers and sales of 
the company's stock. Farrell v. Farrell, 
365 Ark. 465, 231 S.W3d 619 (2006). 

Although stock the wife acquired before 
the marriage was not marital property, 
the increase in value of the stock was a 
marital asset and an unequal distribution 
of that asset of 20 percent to the husband 
was equitable because the initial 
$25,000.00 for the purchase of the stock 
was paid from marital funds subsequent 
to the parties' marriage, and the increase 



267 



DIVORCE AND ANNULMENT 



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in the value of the stock was not totally 
attributable to the efforts of the wife but 
was due in large part to her efforts. Far- 
rell v. Farrell, 365 Ark. 465, 231 S.W.3d 
619 (2006). 

Where wife had acquired stock before 
the marriage, under the "source of funds" 
rule, it was not marital property even 
though marital funds had been used to 
repay the loan from her grandparents for 
the purchase of the stock. Farrell v. Far- 
rell, 365 Ark. 465, 231 S.W.3d 619 (2006). 

— Stock Options. 

Where a former husband held options to 
purchase shares of stock the chancellor 
properly found that the value of the op- 
tions was the difference between the cost 
of exercising them and the worth of the 
stock, and he properly awarded the former 
wife one-half of that amount as marital 
property. Richardson v. Richardson, 280 
Ark. 498, 659 S.W2d 510 (1983). 

— Trust Property. 

The chancellor was correct in refusing 
to award the wife one-third of the corpus 
of the trust from which the husband was 
entitled only to monthly payments. Kroha 
v. Kroha, 265 Ark. 170, 578 S.W.2d 10 
(1979). 

The wife was entitled to one-third abso- 
lutely of the husband's interest in a trust, 
since his interest was viewed as being 
personal property due to its alienability. 
Gross v. Gross, 266 Ark. 186, 585 S.W.2d 
14 (1979). 

It was improper for court to deny wife 
interest in husband's vested rights in a 
profit-sharing trust agreement. Bachman 
v. Bachman, 274 Ark. 23, 621 S.W.2d 701 
(1981). 

— Valuation. 

The chancellor's use of a "fair market 
value" standard for valuing the parties' 
interest in an ongoing business was not 
clearly erroneous. Crismon v. Crismon, 72 
Ark. App. 116, 34 S.W3d 763 (2000). 

In a divorce action, the trial court erred 
by valuing the former husband's 50 per- 
cent interest in a surgery center based on 
his buy-sell agreement with another 
shareholder instead of by determining the 
fair market value as required by subdivi- 
sion (a)(4) of this section; hence, on appeal 
the court reversed the decree as to the 
division of the marital estate and re- 
manded the case for a proper valuation of 



the surgery center followed by redistribu- 
tion of the marital estate in compliance 
with this section. Cole v. Cole, 82 Ark. 
App. 47, 110 S.W3d 310 (2003). 

Trial court did not err by refusing to 
award a former wife any interest in a 
limited liability company founded by a 
former husband and others because the 
valuation of the husband's interest was 
merely speculative; the company had no 
operational history or goodwill. Adametz 
v. Adametz, 85 Ark. App. 401, 155 S.W.3d 
695 (2004). 

Trial court erred by deducting overhead 
expenses from accounts receivable in or- 
der to determine the valuation of a surgi- 
cal practice because it amounted to a 
double deduction from the same asset; 
moreover, while the trial court was per- 
mitted to impose a tax rate on the receiv- 
ables, it erred by applying a higher rate 
than the former husband was required to 
pay. Adametz v. Adametz, 85 Ark. App. 
401, 155 S.W.3d 695 (2004). 

— Work in Progress. 

"Work in progress" is marital property 
subject to division in a divorce action. 
Meeks v. Meeks, 290 Ark. 563, 721 S.W2d 
653 (1986). 

— Workers' Compensation Claims. 

A workers' compensation claim result- 
ing from an injury which occurred during 
marriage, but which was not adjudicated 
or paid at the time the divorce was ren- 
dered, was subject to division as marital 
property. Goode v. Goode, 286 Ark. 463, 
692 S.W2d 757 (1985). 

Pleadings. 

Where a husband pleaded the unconsti- 
tutionality of the alimony and property 
division statutes in his answer to his 
wife's complaint for temporary mainte- 
nance, the issue of the unconstitutionality 
of the statutes was properly raised at 
trial, and the husband did not have to 
replead that issue in his answer to his 
wife's amended complaint seeking an ab- 
solute divorce. Noble v. Noble, 270 Ark. 
602, 605 S.W2d 453 (1980). 

Chancellor erred in dividing the marital 
property under this section where only 
separate maintenance was sought in 
amended pleading. Spencer v. Spencer, 
275 Ark. 112, 627 S.W.2d 550 (1982). 

Chancellor is not required to divide any 
asset equally between the parties if rea- 



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268 



sons for not doing so are stated. Bunt v. 
Bunt, 294 Ark. 507, 744 S.W.2d 718 

(1988). 

Redivision of Property. 

Wife's false statement during the course 
of negotiation concerning marital prop- 
erty that she had spent money her hus- 
band had given her for living expenses 
when in fact she had used it to make an 
interest free loan to a third party in return 
for which she received a promissory note 
should not have been considered by the 
trial court as a significant factor in the 
redivision of the parties' property and 
doctrine of unclean hands should not have 
been applied. Estate of Houston v. Hous- 
ton, 31 Ark. App. 218, 792 S.W.2d 342 
(1990). 

Chancellor should not have considered 
the fact that wife's needs had diminished 
because of her death as a significant factor 
in redistributing the parties' property. Es- 
tate of Houston v. Houston, 31 Ark. App. 
218, 792 S.W2d 342 (1990). 

Remarriage. 

Chancellor's finding that the parties in- 
tended to abrogate the property settle- 
ment which they had made in at the time 
of their first divorce upon their remar- 
riage was not clearly erroneous; thus, all 
of the property involved in the first prop- 
erty settlement was marital property 
which was subject to an equal division at 
the time of their second divorce. Mc- 
Murtray v. McMurtray, 275 Ark. 303, 629 
S.W.2d 285 (1982). 

Where parties had been married and 
divorced twice, it was not error for the 
chancellor to find that wife was entitled to 
some benefit by reason of marital funds 
having been used to pay off debts on two 
nonmarital farms; however, her interest 
should be limited to the amounts paid on 
the farms subsequent to the second mar- 
riage because she had been paid for her 
interest at the time of the first divorce. 
Bagwell v. Bagwell, 282 Ark. 403, 668 
S.W.2d 949 (1984). 

Where the parties settled the case after 
the trial had commenced and advised the 
chancellor of the terms of their property 
settlement as well as the terms of their 
alimony and child support settlement; but 
no formal agreement was dictated into the 
record, they did not state that they in- 
tended to create an independent contract 



for alimony, and the chancellor did not 
treat it as an independent contract, the 
chancellor could modify the decree ten 
years later and cease payments as a result 
of the wife's remarriage. Shipley v. Ship- 
ley, 305 Ark. 257, 807 S.W2d 915 (1991). 

Res Judicata. 

This section contemplated a division of 
the husband's property when a decree of 
divorce was granted and that, if the wife 
failed to ask for and obtain the relief when 
the decree was granted, the matter be- 
came res judicata. Taylor v. Taylor, 153 
Ark. 206, 240 S.W 6 (1922). 

Where husband and wife both sued for 
divorce and the wife asked for a division of 
the property the court should have heard 
the evidence and decided the question of 
property rights, but having failed to do so 
Supreme Court would affirm decree for 
the wife without prejudice to her right to 
maintain a suit for any interest she may 
have in property. Parrish v. Parrish, 195 
Ark. 766, 114 S.W2d 29 (1938). 

Divorce decree was not res judicata of 
suit for possession of personal property. 
Swanson v. Johnson, 212 Ark. 349, 205 
S.W.2d 702 (1947). 

Denial of former wife's motion for a 
portion of her former husband's military 
retirement was proper because the parties 
had been divorced and their property had 
been divided in a final manner; thus, res 
judicata was applicable because the divi- 
sion of military retirement could have 
been litigated at the divorce hearing. Fos- 
ter v. Foster, 96 Ark. App. 109, 239 S.W3d 
1 (2006). 

Return of Nonmarital Property. 

If there is any deviation from returning 
nonmarital property to the original owner 
the reasons given by the trier of fact must 
be sufficiently specific. Canady v. Canady, 
285 Ark. 378, 687 S.W2d 833 (1985). 

Sale of Lands. 

Where divorce is granted to wife and if 
it is necessary that real estate in which 
she was granted a life estate be sold, the 
value of the life estate should be ascer- 
tained and that amount turned over to the 
wife from the proceeds of the sale; it is 
improper to turn one-third of the proceeds 
over to the wife. Allen v. Allen, 126 Ark. 
164, 189 S.W. 841 (1916). 

Where husband had title to certain 
lands in fee and he and his wife had only 



269 



DIVORCE AND ANNULMENT 



9-12-315 



a life estate in other lands and lands were 
not susceptible of division in kind, it was 
proper to order the lands sold but it was 
error to direct the sale of the lands in 
solido. Dowell v. Dowell, 207 Ark. 578, 182 
S.W.2d 344 (1944). 

In a divorce settlement of property 
rights the trial court is not bound to order 
immediate sale of land purchased by the 
husband during coverture, so that it was 
not abuse of discretion where the court 
awarded exclusive possession of the land 
to the wife for three years subject to taxes 
and retained jurisdiction to effect sale of 
the property, division of proceeds and en- 
forcement of property rights and alimony 
award. Jarrett v. Jarrett, 226 Ark. 933, 
295 S.W.2d 323 (1956). 

Tract of land which was purchased after 
1947 but which formed only connection 
between tract of land purchased prior to 
1947 and highway, would not be ordered 
sold by court, since both parcels should be 
handled together and land purchased 
prior to 1947 could not be sold. Brimson v. 
Brimson, 227 Ark. 1045, 304 S.W.2d 935 
(1957). 

Ex-husband's argument about the im- 
proper sale of the parties marital home 
under subdivision (a)(3)(B) of this section 
was not considered on appeal because he 
failed to object to such sale, thereby waiv- 
ing the argument, and it was not a suffi- 
ciency of the evidence question under 
which the court could review the issue 
without an objection under Ark. R. Civ. P. 
52(b)(2). Roberts v. Yanyan Yang, 102 Ark. 
App. 384, 285 S.W.3d 689 (2008). 

Separate Property. 

Husband provided clear and convincing 
evidence that the checking account funds 
remained his separate property despite 
the account existing in both names. 
McKay v. McKay, 340 Ark. 171, 8 S.W.3d 
525 (2000). 

A home owned by the husband prior to 
the parties' marriage was his separate 
property where both parties owned homes 
prior to their marriage. Dial v. Dial, 74 
Ark. App. 30, 44 S.W.3d 768 (2001). 

In a dissolution of marriage case, the 
court properly awarded the interest in a 
condominium to the husband where: (1) 
the condominium was acquired by the sole 
contribution of the husband, (2) he was 
the only party at risk on the purchase of 
the condominium, (3) he did not use un- 



disclosed marital funds to purchase the 
condominium, (4) he did not take title to it 
until after the divorce was final, and (5) he 
intended to use the condominium as his 
post-marital residence. Page v. Anderson, 
85 Ark. App. 538, 157 S.W.3d 575 (2004). 
In a divorce action, the trial court did 
not err under subdivision (a)(2) of this 
section in not awarding the husband an 
interest in properties that the wife owned 
prior to their marriage because the decree 
awarded the husband full ownership in an 
entity that was titled in both parties' 
names, and awarded him full ownership 
of an investment account that he created 
with pre-divorce income. Ransom v. Ran- 
som, — Ark. App. — , — S.W.3d -, 2009 
Ark. App. LEXIS 427 (Apr. 15, 2009). 

Social Security Benefits. 

State courts are without power to take 
any action to enforce a private agreement 
dividing future payments of Social Secu- 
rity benefits; such an agreement violates 
the federal statutory prohibition, 42 
U.S.C. § 407(a), against transfer or as- 
signment of future benefits. Gentry v. 
Gentry, 327 Ark. 266, 938 S.W.2d 231 
(1997). 

Tax Consequences. 

The tax consequences which subse- 
quently evolve from a property division 
should not be permitted to operate ineq- 
uitably, and where there were doubts as to 
fairness of imposition on husband of tax 
liability on sales of property, court should 
retain jurisdiction until tax results could 
be ascertained. Bagwell v. Bagwell, 282 
Ark. 403, 668 S.W.2d 949 (1984). 

Where there was no demonstrable fed- 
eral income tax consequence resulting 
from the division of the property, the de- 
cree did not require a sale, and there was 
no evidence that a sale was imminent, the 
Chancellor erred in subtracting from the 
value of a business asset the amount of 
federal tax that would have to be paid in 
the event the asset were sold. Grace v. 
Grace, 326 Ark. 312, 930 S.W.2d 362 
(1996). 

Timing. 

A portion of a divorce decree which 
permitted a husband to delay payment of 
his wife's share of property until the sale 
of the home following their minor child's 
attaining majority or graduation from 
high school was not consistent with the 



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270 



requirement of this section that property 
be distributed at the time the decree is 
entered; therefore, the decree was modi- 
fied to require the husband to pay the 
wife's share within a reasonable period of 
time. Russell v. Russell, 275 Ark. 193, 628 
S.W.2d 315 (1982). 

Where the parties in a divorce action 
specifically agreed that no property divi- 
sion was to be made at the time the 
limited divorce decree was entered, the 
trial court did not err in not ordering a 
property division at the time he granted 
the limited divorce, despite the language 
of this section to the effect that all marital 
property is to be distributed at the time 
the divorce decree is entered. Forrest v. 
Forrest, 279 Ark. 115, 649 S.W.2d 173 
(1983). 

It was not an abuse of the chancellor's 
discretion to ascertain the extent of mari- 
tal property and evaluate it as of the date 
of the divorce. Askins v. Askins, 288 Ark. 
333, 704 S.W2d 632 (1986). 

To the extent the Chancellor may have 
divided marital property as of the date the 
first divorce complaint was denied, it was 
error to do so; the marital property should 
have been divided and distributed at the 
time the divorce decree was entered as 
provided in subsection (a) of this section. 
Hadden v. Hadden, 320 Ark. 480, 897 
S.W2d 568 (1995). 

The chancellor acted correctly in using 
the date of divorce, rather than the date of 
a remand hearing, as the date on which to 
value marital property. Skokos v. Skokos, 
344 Ark. 420, 40 S.W.3d 768 (2001). 

Tort Action. 

A spouse involved in a divorce, having a 
cause of action in tort against his or her 
spouse, is not required to bring that action 
in the divorce case and can pursue the 
claim in circuit court. Cater v. Cater, 311 
Ark. 627, 846 S.W.2d 173 (1993). 

Undue Influence. 

Record contained testimony that the 
ex-husband commanded a dominating in- 
fluence over the ex-wife and that he bad- 
gered, threatened, and belittled her to 
accede to his demand for an interest in the 
ex-wife's property at a time when she was 
in a weakened condition, both physically 
and emotionally, due to the illness of her 
father and the death of her son; the trial 
court's findings of undue influence were 



not clearly erroneous and the court af- 
firmed the setting aside of the deed, and 
the court noted that a review of case law 
did not reveal any time restraints for 
seeking to set aside a transaction that was 
not freely made. Young v. Young, 101 Ark. 
App. 454, 278 S.W.3d 603 (2008). 

Unequal Division. 

Trial judge did not abuse its discretion 
in denying the husband's request for an 
unequal division of the marital property 
in his favor and instead, distributing the 
marital property unevenly in the wife's 
favor because this section did not compel 
mathematical precision in the distribu- 
tion of property; this section simply re- 
quired that marital property be distrib- 
uted equitably and the trial judge could 
consider whether the parties to the di- 
vorce needed to use marital funds to meet 
necessary expenses incurred during the 
pendency of the action, and whether the 
amount used was reasonable, whether 
fraud or overreaching occurred, and 
whether an offset was appropriate. Will- 
iams v. Williams, 82 Ark. App. 294, 108 
S.W3d 629 (2003). 

Circuit court did not err in unequally 
dividing the stock proceeds where the or- 
der showed that both the length of the 
marriage and the contribution of the par- 
ties to the acquisition of the stock pro- 
ceeds formed the basis for its decision to 
divide the property unequally; the lower 
court was not required to list all the 
factors and was entitled to weigh the 
factors differently in reaching its decision. 
Hernandez v. Hernandez, 371 Ark. 323, 
265 S.W3d 746 (2007). 

Trial court properly considered the fac- 
tors in this section when it declined to 
award a former wife an unequal division 
of marital property because the wife had 
deposited her large personal injury settle- 
ment into a joint account, and she used 
the proceeds to make purchases of prop- 
erty titled in both parties' names. More- 
over, equity did not compel a different 
result since the wife used the proceeds to 
purchase non-essential items, despite 
knowing that she was uninsurable and 
that she had suffered business losses over 
the past three years. Singleton v. Single- 
ton, 99 Ark. App. 371, 260 S.W.3d 756 
(2007). 

Circuit court, in reaching a determina- 
tion as to the equitable division of marital 



271 



DIVORCE AND ANNULMENT 



9-12-315 



property under subdivision (a)(1)(A) of 
this section, was free to consider the hus- 
band's interest in the limited partnership, 
and his opportunity to double the size of 
his estate upon the death of his mother, 
and the limitation on the husband's inter- 
est in the partnership, in the form of the 
usufruct, was of no relevance, as the op- 
portunity to add to his estate was a proper 
consideration. Brown v. Brown, 373 Ark. 
333, 284 S.W.3d 17 (2008). 

Trial court considered the factors in 
subdivision (a)(1)(A) of this section in 
making an unequal distribution of marital 
assets, and while the ex-husband was 
correct that simply reciting the statutory 
factors did not satisfy the requirement of 
the statute, the trial court covered this 
issue in detail in its oral ruling from the 
bench, and this met the requirements of 
the statute. Young v. Young, 101 Ark. App. 
454, 278 S.W.3d 603 (2008). 

Trial court did not err by considering 
the husband's actions in making an un- 
equal division of marital property, because 
the trial court considered the wife's dimin- 
ished state of health after the husband 
shot her and found that the husband's 
violent attack left the wife without the 
ability to earn a living, and the husband 
dissipated marital assets by twice setting 
fire to the marital home and by transfer- 
ring items of marital property, namely the 
tractor and vehicle, to the parties' son. 
Frost v. Frost, — Ark. App. — , — S.W.3d 
— , 2009 Ark. App. LEXIS 472 (Apr. 15, 
2009). 

— In General. 

Where chancellor's order said alimony 
award was not a distribution of marital 
property or given in lieu of such a distri- 
bution, but it then referred to the discrep- 
ancy in income which would result from 
the difference in profit potential between 
two properties, reversal of the award gave 
the chancellor appropriate flexibility in 
reconsidering the distribution of marital 
property, if he chose to do so, rather than 
readopt the unequal distribution with an 
explanation as this section requires. Har- 
vey v. Harvey, 295 Ark. 102, 747 S.W.2d 89 
(1988). 

Where the chancellor awarded wife a 
share of various retirement benefits of 
husband, but stated that if she prede- 
ceased husband her share was to revert 
back to the husband, in effect, she was 



given only a life estate in the benefits, but 
there was no error in awarding such a life 
estate as part of an unequal distribution. 
Franklin v. Franklin, 25 Ark. App. 287, 
758 S.W2d 7 (1988). 

— Factors Considered. 

The specific enumeration of certain fac- 
tors for the chancellor to consider in dis- 
tributing the marital property other than 
equally should not prevent consideration 
of the fact that one spouse has been con- 
victed of conspiring to kill the other. Sto- 
ver v. Stover, 287 Ark. 116, 696 S.W.2d 750 
(1985). 

The fact that this section provides that 
the increase in value of property acquired 
by one party prior to the marriage is 
nonmarital property does not mean that 
the chancellor must award the entire 
amount of the increase to the party that 
acquired the property prior to the mar- 
riage; instead, subdivision (a)(2) of this 
section expressly provides that the court 
may make some other division that it 
deems equitable. If the trial court does 
determine that it is equitable to divide 
nonmarital property between the parties, 
however, this section requires that the 
court take into consideration those factors 
listed in subdivision (a)(1)(A) of this sec- 
tion and that the court state in writing its 
reasons. Yockey v. Yockey, 25 Ark. App. 
321, 758 S.W.2d 421 (1988). 

Support of an adult, college student 
child does not fall directly within any of 
the nine items listed in this section to be 
considered in reaching an unequal distri- 
bution of a marital asset. Hadden v. Had- 
den, 320 Ark. 480, 897 S.W.2d 568 (1995). 

In a divorce case, the trial court did not 
err in the division of the couple's property; 
the wife was awarded the entire value of 
her retirement account and one-half of her 
husband's business interests due to her 
husband's superior earning ability. 
Delacey v. Delacey, 85 Ark. App. 419, 155 
S.W3d 701 (2004). 

— Motor Vehicles. 

There was no error in the chancellor's 
decision awarding to wife a vehicle that 
was debt-free, while awarding to husband 
a vehicle with indebtedness; this section 
does not compel mathematical precision 
in property distribution, only that marital 
property be distributed equitably. Creson 
v. Creson, 53 Ark. App. 41, 917 S.W2d 553 
(1996). 



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272 



— Reversed. 

A division of marital property was im- 
proper and would be reversed where the 
chancellor intended to divide the property 
60/40, but the actual division was much 
more unequal because he failed to reduce 
the worth of a business awarded to the 
husband by a substantial debt owed to a 
bank and because he arbitrarily added a 
50 percent enhancement to the value of 
the business. Hoover v. Hoover, 70 Ark. 
App. 215, 16 S.W.3d 560 (2000). 

— Statement of Reasons. 

Appellate court would not review the 
alleged trial court error in the division of 
the marital property until the trial court 
complied with the requirement to state 
the basis and reasons for not dividing the 
property equally. Davis v. Davis, 270 Ark. 
180, 603 S.W.2d 900 (Ct. App. 1980). 

Where an equal division of property was 
made, there was no necessity for the chan- 
cellor to state his reasons for not so divid- 
ing the property. Ausburn v. Ausburn, 271 
Ark. 330, 609 S.W2d 14 (1980). 

Where the trial court failed to provide 
any reasons in its order dividing the mari- 
tal property that indicated the bases for 
awarding the former wife's one-fourth 
marital property interest in a partnership 
to her former husband, and there was 
nothing in the record which showed that 
the former wife received anything in re- 
turn for the partnership interest taken 
from her by the court, the former wife's 
one-fourth interest in the partnership 
would be reinstated. Glover v. Glover, 4 
Ark. App. 27, 627 S.W.2d 30 (1982). 

Any exception to the rule of equal dis- 
tribution will always depend upon the 
specific facts as reflected by the trial 
court's findings and conclusions. Gentry v. 
Gentry, 282 Ark. 413, 668 S.W.2d 947 
(1984); Cavin v. Cavin, 308 Ark. 109, 823 
S.W2d 843 (1992). 

If the chancellor had specific reasons for 
not equally dividing the parties' marital 
savings, he failed to state those reasons in 
compliance with this section. Duncan v. 
Duncan, 11 Ark. App. 25, 665 S.W.2d 893 
(1984). 

The trial court sufficiently stated its 
reasons for an unequal distribution of the 
parties' premarital and marital property 
pursuant to the issuance of a divorce de- 
cree. Pennybaker v. Pennybaker, 14 Ark. 
App. 251, 687 S.W.2d 524 (1985).. 



Where appellant maintained that there 
was an unequal division of marital prop- 
erty and that the court failed to state the 
basis for the unequal division, the burden 
was upon the appellant to bring up a 
record sufficient to demonstrate that the 
trial court was in error. Young v. Young, 
288 Ark. 33, 701 S.W2d 369 (1986). 

Where the trial court failed to award 
wife her interest in two notes which hus- 
band owned or in which he had an owner- 
ship interest, and wife clearly had a right 
to her marital interest in those notes, the 
trial court should have given its basis and 
reasons for not having awarded her one- 
half interest pursuant to subdivision 
(a)(1) of this section; therefore, the trial 
court's action was reversed. Allen v. Allen, 
17 Ark. App. 38, 702 S.W2d 819 (1986). 

Where chancellor stated that he found 
an unequal division to be "appropriate" 
rather than "equitable," the appellate 
court could find no such significance in his 
choice of words and could not say that the 
chancellor's findings that the circum- 
stances warranted an unequal division of 
property were clearly erroneous. Franklin 
v. Franklin, 25 Ark. App. 287, 758 S.W2d 
7 (1988). 

Where the trial court allowed wife to 
keep investment accounts as the wife's 
sole and separate property because they 
were from her sole earnings, while some 
evidence may have supported an unequal 
division of marital property, the trial 
judge failed to state reasons in the written 
order supporting the unequal division; the 
written order listed the factors to be con- 
sidered such as length of marriage and the 
age and health of the parties, however, the 
order failed to include findings explaining 
why such factors supported an unequal 
division of marital property and reversal 
and remand was required. Baxley v. Bax- 
ley, 86 Ark. App. 200, 167 S.W3d 158 
(2004). 

— Tax Consequences. 

The court rejected the husband's argu- 
ment that the chancellor found the mari- 
tal property to be unequally divided but 
failed to take tax consequences into ac- 
count; although the chancellor declined to 
require the wife to share in the tax conse- 
quences, neither the court's findings nor 
its order reflected that the chancellor 
failed to consider such tax consequences; 
rather, they reflected only that he decided 



273 



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that the wife did not have to share in 
them. Skokos v. Skokos, 344 Ark. 420, 40 
S.W.3d 768 (2001). 

—Upheld. 

Where the trial judge, in a divorce ac- 
tion, based the unequal property distribu- 
tion upon the fact that the husband was 
blind and unemployable, while the wife 
was employable and had always worked 
outside the home, and the judge further 
found that the wife had not contributed to 
the home expenses or payments and had 
not used her money for the family's ben- 
efit, the evidence supported unequal divi- 
sion of property. Forsgren v. Forsgren, 4 
Ark. App. 286, 630 S.W.2d 64 (1982); 
Cantrell v. Cantrell, 10 Ark. App. 357, 664 
S.W.2d 493 (1984). 

The wife was properly awarded more 
than half of the marital estate where (1) 
the parties were married for 17 years, (2) 
the husband earned significantly more 
money than did the wife, and (3) the 
husband was vested one-third beneficiary 
of an undistributed trust worth $250,000, 
and was the sole heir to his mother's 
one-million-dollar estate. Atkinson v. At- 
kinson, 72 Ark. App. 15, 32 S.W.3d 41 
(2000). 

This section does not apply to the divi- 
sion of marital debts and there is no 
presumption that an equal division of 
debts must occur; thus, where the parties 
had only a brief marriage and the wife 
plainly had preexisting medical bills, her 
failure to present testimony or medical 
bills indicating which bills were incurred 
after the parties married justified the trial 
court's decision that the husband was not 
responsible for a portion of those bills. 
Weatherly v. Weatherly, 87 Ark. App. 291, 
190 S.W.3d 294 (2004). 

Waiver. 

Wife waived any rights she may have 
had in retirement fund by failing either to 
assert those rights in divorce action or to 
appeal from court's failure to effect the 
statutorily mandated property division in 
the divorce decree. Mitchell v. Meisch, 22 
Ark. App. 264, 739 S.W.2d 170 (1987); 



Jones v. Jones, 26 Ark. App. 1, 759 S.W.2d 
42 (1988). 

Cited: Biddle v. Biddle, 206 Ark. 623, 
177 S.W2d 32 (1944); Alexander v. Alex- 
ander, 227 Ark. 938, 302 S.W2d 781 
(1957); Brimson v. Brimson, 227 Ark. 
1045, 304 S.W2d 935 (1957); White v. 
White, 228 Ark. 732, 310 S.W.2d 216 
(1958); Horn v. Horn, 232 Ark. 723, 339 
S.W.2d 852 (1960); Wood v. Wright, 238 
Ark. 941, 386 S.W2d 248 (1965); Ashley v. 
Eisele, 247 Ark. 281, 445 S.W2d 76 
(1969); Walker v. Walker, 248 Ark. 93, 450 
S.W2d 1 (1970); Law v. Law, 248 Ark. 894, 
455 S.W2d 854 (1970); McNew v. McNew, 
262 Ark. 567, 559 S.W2d 155 (1977); 
Milne v. Milne, 266 Ark. 900, 587 S.W2d 
229 (Ct. App. 1979); Pendergist v. Pender- 
gist, 267 Ark. 1114, 593 S.W2d 502 (1980); 
Godwin v. Godwin, 268 Ark. 364, 596 
S.W.2d 695 (1980); Barron v. Barron, 1 
Ark. App. 323, 615 S.W2d 394 (1981); 
Pinkston v. Pinkston, 278 Ark. 233, 644 
S.W2d 930 (1983); Mitchell v. Mitchell, 
278 Ark. 619, 648 S.W2d 51 (1983); Wagh 
v. Wagh, 7 Ark. App. 122, 644 S.W2d 630 
(1983); Coleman v. Coleman, 7 Ark. App. 
280, 648 S.W2d 75 (1983); Callaway v. 
Callaway, 8 Ark. App. 129, 648 S.W2d 520 
(1983); Boyle v. Donovan, 724 F.2d 681 
(8th Cir. 1984); Bennett v. McGough, 281 
Ark. 414, 664 S.W2d 476 (1984); Carrick 
v. Carrick, 13 Ark. App. 42, 679 S.W2d 
800 (1984); Woods v. Woods, 285 Ark. 175, 
686 S.W2d 387 (1985); Farris v. Farris, 
287 Ark. 479, 700 S.W2d 371 (1985); 
Glover v. Glover, 15 Ark. App. 79, 689 
S.W2d 592 (1985); Potter v. Easley, 288 
Ark. 133, 703 S.W2d 442 (1986); Harvey v. 
Harvey, 298 Ark. 308, 766 S.W2d 935 
(1989); Layman v. Layman, 300 Ark. 583, 
780 S.W2d 560 (1989); Crowder v. Crow- 
der, 303 Ark. 562, 798 S.W2d 425 (1990); 
Nowell v. Nowell, 31 Ark. App. 78, 787 
S.W2d 698 (1990); Bolan v. Bolan, 32 Ark. 
App. 65, 796 S.W2d 358 (1990); Mulling v. 
Mulling, 323 Ark. 88, 912 S.W2d 934 
(1996); Grider v. Grider, 62 Ark. App. 99, 
968 S.W2d 653 (1998); Dunavant v. 
Dunavant, 66 Ark. App. 1, 986 S.W2d 880 
(1999). 



9-12-316. Property settlements. 

In any divorce suit in which a written property settlement involving 
real property is entered into by the parties and reference is made to the 
settlement in the divorce decree, a copy of that portion of the property 



9-12-317 



FAMILY LAW 



274 



settlement involving real property shall be filed and recorded with the 
divorce decree. 

History. Acts 1969, No. 398, § 2;A.S.A. 
1947, § 34-1214.1. 

RESEARCH REFERENCES 

A.L.R. Divorce decree or settlement proceedings. 124 A.L.R.5th 537. 



agreement as affecting divorced spouse's 
right to recover as named beneficiary on 
former spouse's individual retirement ac- 
count. 99 A.L.R.5th 637. 

Division of lottery proceeds in divorce 



Spouse's professional degree or license 
as marital property for purposes of ali- 
mony, support, or property settlement. 3 
A.L.R.6th 447. 



CASE NOTES 



Analysis 

Independent Contract. 
Modification. 

Independent Contract. 

Wording of the property settlement 
agreement and the actions of the parties 
at the time of the divorce clearly showed 
that the parties intended to have an inde- 
pendent contract. Kennedy v. Kennedy, 53 
Ark. App. 22, 918 S.W.2d 197 (1996). 

Modification. 

Chancery court did not have authority 
to modify alimony payments when the 



alimony provision was part of the parties' 
written agreement, which was an inde- 
pendent contract between the parties; the 
decree of alimony was based on a property 
settlement agreement between the parties 
which was incorporated in the decree and 
approved by the court as an independent 
contract, but did not merge into the 
court's award and was not subject to modi- 
fication except by consent of the parties. 
Kennedy v. Kennedy, 53 Ark. App. 22, 918 
S.W.2d 197 (1996). 



9-12-317. Dissolution of estates by the entirety or survivorship. 

(a) Hereafter, when any circuit court in this state renders a final 
decree of divorce, any estate by the entirety or survivorship in real or 
personal property held by the parties to the divorce shall be automati- 
cally dissolved unless the court order specifically provides otherwise, 
and in the division and partition of the property, the parties shall be 
treated as tenants in common. 

(b) Notwithstanding subsection (a) of this section or any other law to 
the contrary, when one (1) of the parties to the estate by the entirety has 
been found guilty or has pleaded guilty or nolo contendere to a felony 
during the marriage and within three (3) years of filing the complaint 
for divorce and the other party to the divorce did not benefit from the 
felony, the circuit judge may award the property to the spouse who did 
not commit the felony or to both parties in any proportion deemed 
equitable by the circuit judge. 

(c) However, when a circuit court in this state renders an absolute 
divorce from the bonds of matrimony or a divorce from bed and board, 
and the court dissolves estates by the entirety or survivorship in real or 
personal property under this section, the court may distribute the 



275 



DIVORCE AND ANNULMENT 



9-12-317 



property as provided in § 9-12-315. The court shall set forth its reasons 
in writing in the decree for making an other than equal distribution to 
each party, when all the property is considered together, taking into 
account the factors enumerated in § 9-12-315(a)(l). 

History. Acts 1947, No. 340, § 1; 1975, Cross References. Petition for parti- 

No. 457, § 1; A.S.A. 1947, § 34-1215; Acts tion of estate by entirety by divorced per- 
1991, No. 1160, § 1; 1997, No. 1119, § 1. sons, § 18-60-401. 

RESEARCH REFERENCES 



Ark. L. Rev. Acts of 1947: Partition of 
Estates by Entirety, 1 Ark. L. Rev. 220. 

Tenancy by the Entirety — Divorce — A 
Peculiar Rule of Property in Arkansas, 22 
Ark. L. Rev. 386. 

U. Ark. Little Rock L.J. Survey of 
Arkansas Law: Family Law, 6 U. Ark. 
Little Rock L.J. 159. 

Harris, the Arkansas Marital Property 
Statute and the Arkansas Appellate 



Courts: Tiptoeing Together Through the 
Tulips, 7 U. Ark. Little Rock L.J. 1. 

Arkansas Law Survey, Schneider, Dece- 
dents' Estates, 7 U. Ark. Little Rock L.J. 
205. 

Survey — Family Law, 14 U. Ark. Little 
Rock L.J. 799. 



CASE NOTES 



Analysis 

In General. 

Applicability. 

Adverse Possession. 

Death of Party. 

Disposition of Property. 

Final Decree of Divorce. 

Foreign Law. 

Fraud. 

Presumption. 

Property Settlement. 

Remarriage. 

Rent. 

Repairs. 

Retroactive Effect. 

Withdrawal of Funds. 

In General. 

It is automatic that an estate by the 
entirety is changed to one in common 
unless the court decrees otherwise. Vill- 
anova v. Pollock, 264 Ark. 912, 576 S.W.2d 
501 (1979). 

Acts 1979, No. 705, which amended 
§ 9-12-315, did not abolish this section; 
accordingly, § 9-12-315 does not apply to 
property owned as tenants by the entirety. 
Warren v. Warren, 273 Ark. 528, 623 
S.W2d 813 (1981). 

This section is the only authority for 
dividing estates by the entirety, and it 



provides for the equal division of property 
without regard to gender or fault. Askins 
v. Askins, 5 Ark. App. 64, 632 S.W2d 249 
(1982); Warren v. Warren, 11 Ark. App. 58, 
665 S.W.2d 909 (1984). 

Where parties' residence is held as a 
tenancy by the entirety, that estate is 
automatically dissolved when the final 
decree is rendered, unless the chancellor 
specifically provided otherwise, pursuant 
to this section. Creson v. Creson, 53 Ark. 
App. 41, 917 S.W.2d 553 (1996). 

Marital residence was owned by the 
husband and wife as tenants by the en- 
tirety, and thus, the circuit court had the 
option of disposing of the property in the 
manner required for the distribution of 
marital property, one-half to each party 
unless such a division would be inequi- 
table; the circuit court adequately set 
forth its reasons for the unequal division 
of the property, and was not required to 
provide reasons specific to the marital 
residence, but rather to provide reasons 
for the unequal division when all the 
property is considered together, under 
subsection (c) of this section. Brown v. 
Brown, 373 Ark. 333, 284 S.W3d 17 
(2008). 

Applicability. 

This section applies only where a valid 
estate by the entirety has been created 



9-12-317 



FAMILY LAW 



276 



and has no application where one of the 
parties fraudulently causes his name to be 
added to the deed. Johnson v. Johnson, 
237 Ark. 311, 372 S.W.2d 598 (1963). 

Under this section this limited power of 
chancery courts to dissolve estates by the 
entirety is confined to cases involving a 
divorce. Bebout v. Bebout, 241 Ark. 291, 
408 S.W.2d 480 (1966). 

The division of property held as tenants 
by the entirety is governed by this section 
rather than § 9-12-315; this section is the 
only statutory authority for the division of 
tenancies by the entirety, and it provides 
for an equal division of such property 
without regard to gender or fault. Lyle v. 
Lyle, 15 Ark. App. 202, 691 S.W.2d 188 
(1985). 

Adverse Possession. 

Where an estate by the entirety could 
not be divided by the court prior to the 
enactment of this section, one of the own- 
ers could not claim adverse possession 
where the other owner quit living on the 
property following the divorce of the own- 
ers by the entirety. Hubbard v. Hubbard, 
251 Ark. 465, 472 S.W2d 937 (1971). 

Death of Party. 

Where action regarding property rights 
had been taken under submission and not 
finally decided by the chancellor when the 
death of the husband caused the action to 
abate, the nunc pro tunc divorce order 
rendered after the property aspects were 
submitted but before they were finally 
decided and before the death was of no 
effect. Pendergist v. Pendergist, 267 Ark. 
1114, 593 S.W.2d 502 (1980), superseded 
by statute as stated in, Standridge v. 
Standridge, 298 Ark. 494, 769 S.W2d 12 
(1989). 

Where a divorce proceeding was pend- 
ing between couple at time of husband's 
death and, upon the rendition of a divorce 
in that action, their estate by the entirety 
would have dissolved automatically and 
they would have become tenants in com- 
mon, court correctly held that husband's 
estate was entitled to his share of pro- 
ceeds from sale of the property. Rucks v. 
Taylor, 10 Ark. App. 195, 662 S.W2d 199 
(1983), affd, 282 Ark. 200, 667 S.W2d 365 
(1984). 

Disposition of Property. 

Where husband and wife owned home 
as tenants by the entirety, the home was 



properly ordered sold with the proceeds to 
be divided equally upon granting of di- 
vorce to wife. Carr v. Carr, 226 Ark. 355, 
289 S.W.2d 899 (1956) (decision prior to 
1975 amendment). 

Upon divorce, property held as a ten- 
ancy by the entirety is treated as a ten- 
ancy in common, and the court may place 
one of the parties in possession or may 
order the property sold and the proceeds 
divided; however, the court exceeded its 
authority by directing husband to give his 
divorced wife a quitclaim deed to his in- 
terest. Yancey v. Yancey, 234 Ark. 1046, 
356 S.W2d 649 (1962) (decision prior to 
1975 amendment). 

Where promissory notes were entireties 
property, it was error for the court to 
award the husband a greater share of the 
notes than the wife as a means of equal- 
izing differences in value of real property 
awarded the parties. Ramsey v. Ramsey, 
259 Ark. 16, 531 S.W.2d 28 (1975) (deci- 
sion prior to 1975 amendment). 

Trial court erred when it awarded land, 
held in tenancy by the entirety to husband 
as his separate property upon the dissolu- 
tion of their marriage; the court, in divid- 
ing the property, should have treated the 
husband and wife as tenants in common of 
that land. Askins v. Askins, 5 Ark. App. 64, 
632 S.W.2d 249(1982). 

In divorce action, the chancellor's action 
in placing wife in possession of the parties' 
house was certainly authorized under this 
section and was not clearly against the 
preponderance of the evidence. Wagh v. 
Wagh, 7 Ark. App. 122, 644 S.W2d 630 
(1983). 

Where there was no evidence that wife, 
who advanced consideration for property 
purchased during marriage, expected it to 
be held in a resulting trust, the chancellor 
erred in awarding wife an equitable lien 
against husband's one-half interest in the 
property. Warren v. Warren, 11 Ark. App. 
58, 665 S.W.2d 909 (1984). 

Where the husband and wife acquired a 
one-half interest by deed as tenants by the 
entirety, the trial court, pursuant to this 
section, properly converted this one-half 
interest held as tenants by the entirety 
into two one-quarter interests held as 
tenants in common. Farris v. Farris, 287 
Ark. 479, 700 S.W2d 371 (1985). 

A court has two available options for 
dealing affirmatively with entireties prop- 
erty in the event of the dissolution of the 



277 



DIVORCE AND ANNULMENT 



9-12-317 



entireties estate by divorce: it may place 
one of the parties in possession of the 
property, or it may order the property sold 
and the proceeds divided equally. Award- 
ing marital property held as tenancies by 
entireties solely to wife as part of her 
half-share of the marital property was 
error. Leonard v. Leonard, 22 Ark. App. 
279, 739 S.W.2d 697 (1987). 

The chancellor exceeded his authority 
in awarding real property, held as a ten- 
ancy by the entirety, to the plaintiff, and 
in ordering the defendant to execute a 
deed to the plaintiff. Bradford v. Bradford, 
34 Ark. App. 247, 808 S.W.2d 794 (1991). 

Where wife's inheritance was used to 
purchase stocks, bonds, and securities, 
the court was wrong to hold these were 
her separate property for division pur- 
poses where: (1) the parties filed joint 
income tax returns throughout the time 
that they were married, and that those 
returns listed the income and dividends 
from the investments as joint property; (2) 
the wife considered the property "all for 
one and one for all"; (3) it was a relatively 
long period of time that the separate 
funds were commingled in the joint ac- 
count; and (4) marital funds derived from 
the husband's paycheck were used to meet 
the tax consequences stemming from own- 
ership of the stocks, bonds, and securities 
at issue. McLain v. McLain, 36 Ark. App. 
197, 820 S.W.2d 295 (1991). 

In a divorce action, the trial court erred 
by awarding the marital residence and its 
corresponding debt to the former wife, 
because under subsection (a) of this sec- 
tion the trial court was only authorized to 
order the property sold, give wife posses- 
sion of the property until it would be sold 
at some future time, or leave the parties 
as tenants in common. Cole v. Cole, 82 
Ark. App. 47, 110 S.W.3d 310 (2003). 

Final Decree of Divorce. 

The General Assembly intended "final 
decree of divorce" to refer to an absolute 
divorce from the bonds of matrimony for 
purposes of dissolving a tenancy by the 
entirety, by operation of law. Jones v. Ear- 
nest, 307 Ark. 294, 819 S.W.2d 280 (1991). 

A divorce from bed and board does not 
constitute a final decree of divorce under 
subsection (a) of this section. Jones v. 
Earnest, 307 Ark. 294, 819 S.W.2d 280 
(1991). 

Upon divorce, the operation of law made 
ex-husband and ex-wife tenants in com- 



mon as to their home; thus, upon ex-wife's 
creditors' attempt to attach a judgment 
lien, ex-husband was not barred from as- 
serting the homestead exemption over ex- 
wife's undivided one-half-interest in the 
property. Parker v. Johnson, 368 Ark. 190, 
244 S.W.3d 1 (2006). 

Foreign Law. 

Where divorce granted by court in an- 
other state, such court could order convey- 
ance of lands held as tenancy by entire- 
ties. Phillips v. Phillips, 224 Ark. 225, 272 
S.W2d 433 (1954) (decision prior to 1975 
amendment). 

Where wife obtained valid divorce out of 
state, real property held by the couple in 
Arkansas as tenancy by the entirety 
should be converted to a tenancy in com- 
mon and the proceeds of sale divided 
equally and husband was not entitled to 
claim the property as his homestead even 
though he occupied it as his home. Rodg- 
ers v. Rodgers, 271 Ark. 762, 611 S.W.2d 
175 (1981). 

Fraud. 

Chancery court did not need to cause 
estate by entirety to be sold and the pro- 
ceeds divided where estate brought about 
by fraud. Johnson v. Johnson, 237 Ark. 
311, 372 S.W2d 598 (1963) (decision prior 
to 1975 amendment). 

This section has no application where 
one of the parties fraudulently causes his 
or her name to be added to the deed. 
Warren v. Warren, 273 Ark. 528, 623 
S.W2d 813 (1981). 

Presumption. 

Once property, whether personal or 
real, is placed in the names of persons who 
are husband and wife, without specifying 
the manner in which they take, there is a 
presumption that they own the property 
as tenants by the entirety and it takes 
clear and convincing evidence to overcome 
that presumption. Lofton v. Lofton, 23 
Ark. App. 203, 745 S.W2d 635 (1988); 
Reed v. Reed, 24 Ark. App. 85, 749 S.W2d 
335 (1988); Cole v. Cole, 53 Ark. App. 140, 
920 S.W.2d 32 (1996). 

Property Settlement. 

Property settlement resulting from a 
divorce decree wherein parties agreed to 
sell land held as tenants by the entirety 
and divide the proceeds did not dissolve 
the estate by the entireties and create 



9-12-317 



FAMILY LAW 



278 



tenancy in common. Killgo v. James, 236 
Ark. 537, 367 S.W.2d 228 (1963) (decision 
prior to 1975 amendment). 

Chancellor erred in his disposition of 
married couple's jointly owned four pieces 
of property held as tenants by the entirety 
by giving two lots to each spouse; the 
parties should hold all four lots as tenants 
in common. White v. White, 50 Ark. App. 
240, 905 S.W.2d 485 (1995). 

Remarriage. 

Where wife was given possession of 
property held by the entireties by way of 
maintenance in divorce action and wife 
then remarried, the court held she was no 
longer entitled to exclusive possession of 
the estate by the entirety and chancellor 
had jurisdiction to change the order pro- 
viding for maintenance. Perrv v. Perrv. 
229 Ark. 202, 313 S.W.2d 851 (1958). 

Rent. 

Where the divorce decree provided title 
to the residence be held as a tenancy in 
common, the chancellor erred in holding 
the wife liable for rental fees from the 
time she lived in the house, after the 
contingency was met, requiring the house 
to be sold. Clifton v. Clifton, 34 Ark. App. 
280, 810S.W.2d51(1991). 

Repairs. 

Where divorced parties held property as 
tenants in common, and the chancellor did 
not find repairs by the wife added any 
significant value to the property, or that 
they were permanent in character such 
that the property would have an enhanced 
permanent value, the award of actual 
costs of the repairs to the wife was wrong 
since when the property was sold, the net 
proceeds were to be divided evenly be- 
tween the parties. Clifton v. Clifton, 34 
Ark. App. 280, 810 S.W2d 51 (1991). 

Retroactive Effect. 

Court cannot change estate in entirety 
to estate in tenancy in common, if estate 
in entirety became vested prior to March 
28, 1947. Jenkins v. Jenkins, 219 Ark. 219, 
242 S.W2d 124, 27 A.L.R.2d 861 (1951); 
Meadows v. Costoff, 221 Ark. 561, 254 
S.W.2d 472 (1953); Anderson v. Walker, 
228 Ark. 113, 306 S.W.2d 318 (1957); 
Perry v. Perry, 229 Ark. 202, 313 S.W.2d 
851 (1958) (decisions prior to 1975 amend- 
ment). 

Property acquired subsequent to March 
28, 1947 may be sold on order of the court 



while property acquired prior thereto can 
only be sold by the mutual consent of the 
parties. Brimson v. Brimson, 227 Ark. 
1045, 304 S.W.2d 935 (1957) (decision 
prior to 1975 amendment). 

This section does not act retroactively 
and does not apply to entirety estates 
created prior to March 28, 1947. Poskey v. 
Poskey, 228 Ark. 1, 305 S.W.2d 326 (1957) 
(decision prior to 1975 amendment). 

A holding that entirety property ac- 
quired before March 28, 1947 should be 
continued to be held and managed by the 
husband, granted a divorce on grounds of 
the wife's insanity, was proper where the 
husband was required to pay half the net 
income to the guardian of his divorced 
wife. Wood v. Wright, 238 Ark. 941, 386 
S.W2d 248 (1965) (decision prior to 1975 
amendment). 

Where property was purchased as an 
estate by the entirety, prior to March 28, 
1947, the court in a subsequent divorce 
could not dissolve the estate by the en- 
tirety even if a division had been sought in 
the divorce proceeding. Hubbard v. Hub- 
bard, 251 Ark. 465, 472 S.W2d 937 (1971). 

In partition action, chancellor held that 
the interest of the parties in real property 
had automatically been changed upon 
their divorce from tenants by the entirety 
to tenants in common even though prop- 
erty was bought prior to 1975 amend- 
ment, which made dissolution of estates 
by the entirety automatic. Padgett v. Has- 
ton, 279 Ark. 367, 651 S.W2d 460 (1983). 

Withdrawal of Funds. 

Funds withdrawn from savings account 
held as tenancy by the entirety in contem- 
plation of divorce should have been di- 
vided pursuant to this section. Likewise, 
funds withdrawn from money market ac- 
count held as tenants by the entirety and 
deposited into wife's separate account 
should have been divided under this sec- 
tion. Reed v. Reed, 24 Ark. App. 85, 749 
S.W2d 335 (1988). 

Where spouse withdrew funds from a 
joint account for living expenses, while the 
divorce was pending, and there was no 
finding of fraud or overreaching, the court 
could impose a constructive trust, order 
an accounting, or order an offset. Guinn v. 
Guinn, 35 Ark. App. 199, 816 S.W.2d 629 
(1991). 

Cited: Price v. Price, 217 Ark. 6, 228 
S.W2d 478 (1950); Young v. Young, 222 



279 DIVORCE AND ANNULMENT 9-12-320 

Ark. 827, 262 S.W.2d 914 (1953); Harbour v. Bramlett, 5 Ark. App. 217, 636 S.W.2d 

v. Harbour, 229 Ark. 198, 313 S.W.2d 830 294 (1982); Cook v. Lobianco, 8 Ark. App. 

(1958); Brown v. Brown, 233 Ark. 422, 345 60, 648 S.W.2d 808 (1983); Perrin v. Per- 

S.W.2d 27 (1961); Mclntyre v. Mclntyre, rin, 9 Ark. App. 170, 656 S.W.2d 245 

241 Ark. 623, 410 S.W.2d 117 (1967); (1983); Luecke v. Mercantile Bank, 286 

Brown v. Brown, 263 Ark. 189, 563 S.W.2d Ark. 304, 691 S.W.2d 843 (1985); Flucht v. 

444 (1978); May v. May, 267 Ark. 27, 589 Villareal, 28 Ark. App. 1, 770 S.W.2d 187 

S.W.2d 8 (1979); Ausburn v. Ausburn, 271 (1989); Crowder v. Crowder, 303 Ark. 562, 

Ark. 330, 609 S.W.2d 14 (1980); Bramlett 798 S.W.2d 425 (1990). 

9-12-318. Restoration of name. 

In all cases when the court finds that either party is entitled to a 
divorce, the court may restore the wife to the name that she bore 
previous to the marriage dissolved. 

History. Civil Code, § 462; C. & M. 1947, No. 16, § 1; 1981, No. 302, § 1; 
Dig., § 3512; Pope's Dig., § 4394; Acts A.S.A. 1947, § 34-1216. 

CASE NOTES 

Cited: Perrin v. Perrin, 9 Ark. App. 
170, 656 S.W.2d 245 (1983). 

9-12-319. Nonresident defendants — Warning orders — Entry of 
decree. 

In all divorce actions pending or filed in any of the circuit courts of 
this state where a warning order has been published against the 
defendant, who is a nonresident of this state, for the time and in the 
manner fixed by law and proof of publication has been filed with the 
clerk of the circuit court, and where the report or response of the 
attorney ad litem appointed for the nonresident has been filed with the 
clerk of the court, and no answer or other defense has been filed in the 
circuit court by the nonresident defendant, the judge of the circuit court 
upon submission of the cause to him or her in his or her chambers, or 
at any other place in his or her district by the attorney for the plaintiff, 
shall hear and enter a decree in the cause that shall have the same 
binding force and effect, both in law and equity, as if entered in term 
time in the county where the decree is filed. 

History. Acts 1959, No. 39, § 1; A.S.A. 
1947, § 34-1219. 

9-12-320. Proceedings subsequent to decree — Change of venue. 

(a)(1) The court where the final decree of divorce is rendered shall 
retain jurisdiction for all matters following the entry of the decree. 
(2)(A)(i) Either party, or the court on its own motion, may petition 
the court that granted the final decree to request that the case be 
transferred to another county in which at least one (1) party resides 
if, more than six (6) months subsequent to the final decree: 



9-12-320 FAMILY LAW 280 

(a) Both of the parties to the divorce proceedings have established 
a residence in a county of another judicial district within the state; or 

(b) One (1) of the parties has moved to a county of another judicial 
district within the state and the other party has moved from the State 
of Arkansas. 

(ii) The decision to transfer a case is within the discretion of the 
court where the final decree of divorce was rendered. 

(B) The case shall not be transferred absent a showing that the 
best interest of the parties justifies the transfer. 

(C) In cases in which children are involved and a justification for 
transfer of the case has been made, there shall be an initial presump- 
tion for transfer of the case to the county of residence of the custodial 
parent. 

(D) Justification for transfer of a case may be based on the 
establishment of residence by both parties in a county or state other 
than the county where the final decree of divorce was rendered. 

(b) If the court that granted the final decree agrees to transfer the 
case to another judicial district, the court shall enter an order trans- 
ferring the case and charging the circuit clerk of the court of original 
jurisdiction to transmit forthwith certified copies of all records pertain- 
ing to the case. 

(c) Subsequent to the transfer to a county in another judicial district, 
if the party residing in the county to which the case has been 
transferred removes from that county or from the State of Arkansas, 
the case shall be transferred back to the county of original jurisdiction 
or the county of residence of the party still residing in the State of 
Arkansas. 

(d) The provisions of this section shall not repeal any laws or parts of 
laws in effect on March 3, 1975, relating to venue for divorce actions, 
but shall be supplemental thereto. 

History. Acts 1975, No. 297, §§ 1, 2; § 1; 1999, No. 1491, § 1; 2001, No. 1231, 
A.S.A. 1947, §§ 34-1204.1, 34-1204.1n; § 1. 
Acts 1989, No. 184, § 1; 1999, No. 539, 

RESEARCH REFERENCES 

U. Ark. Little Rock L. Rev. Annual 
Survey of Case Law: Family Law, 29 U. 
Ark. Little Rock L. Rev. 883. 

CASE NOTES 

Analysis the two divorced parties and fails to em- 
brace actions filed by third parties such as 

Applicabilitv grandparents. Sanders v. Sanders, 297 

Substantial Compliance. Ark. 621, 764 S.W.2d 443 (1989). 

F Under the language of § 9- 13- 103(a)(1) 

Applicability. and (c), grandparents are afforded the 

Venue, under this section, refers only to separate right to file for visitation rights 

those subsequent proceedings involving with their grandchildren in situations 



281 DIVORCE AND ANNULMENT 9-12-322 

where the child's parents are divorced, but not divorced, parent denied them ac- 
legally separated, or when a parent has cess to their grandchild. Sanders v. Sand- 
died. Section 9-13-103 contains no restric- ers, 297 Ark. 621, 764 S.W.2d 443 (1989). 
tive language that would require grand- Substantial Compliance. 
parents to file their visitation action in a To effect a change of venue for related 
divorce action filed previously by the proceedings subsequent to a divorce de- 
child's parents. In fact, this section, the cree , there must be compliance with sub- 
venue statute concerning subsequent pro- section (a) of this section. Chappell v. 
ceedings in divorce actions, would be McMillan, 296 Ark. 317, 756 S.W.2d 895 
wholly inapplicable where the grandpar- (1988). 

ents' action is precipitated because their Cited: White v. Winston, 302 Ark. 345, 

son or daughter died and the surviving, 789 S.W.2d 459 (1990). 

9-12-321. Annulment of decree of divorce. 

The proceedings for annulling a final judgment for a divorce from the 
bond of matrimony shall be a joint petition of the parties, verified by 
both parties in person, filed in the court rendering the judgment, upon 
which the court may forthwith annul the divorce. 

History. Civil Code, § 463; C. & M. 
Dig., § 3513; Pope's Dig., § 4395; A.S.A. 
1947, § 34-1217. 

CASE NOTES 

Discretion of Court. petition for annulment of a divorce. Dunn 

By the use of the word "may" in this v. Dunn, 222 Ark. 85, 257 S.W.2d 283 

section it is clear that the chancery court (1953). 
has discretionary powers in considering a 

9-12-322. Divorcing parents to attend parenting class. 

(a) When the parties to a divorce action have minor children residing 
with one (1) or both parents, the court, prior to or after entering a 
decree of divorce, may require the parties to: 

(1) Complete at least two (2) hours of classes concerning parenting 
issues faced by divorced parents; or 

(2) Submit to mediation in regard to addressing parenting, custody, 
and visitation issues. 

(b) Each party shall be responsible for his or her cost of attending 
classes or mediation. 

(c) The parties may: 

(1) Choose a mediator from a list provided by the judge of those 
mediators who have met the Arkansas Alternative Dispute Resolution 
Commission's requirement guidelines for inclusion on a court-con- 
nected mediation roster; or 

(2) Select a mediator not on the roster, if approved by the judge. 

(d) A party may move to dispense with the referral to mediation for 
good cause shown. 



9-12-323 FAMILY LAW 282 

History. Acts 1999, No. 704, § 1; 2001, 
No. 198, § 1. 

RESEARCH REFERENCES 

Ark. L. Notes. Flaccus, Post Divorce and Children at Risk, 2008 Ark. L. Notes 
Fighting — Can It Be Predicted? Divorce 17. 

9-12-323. Joint credit card accounts. 

(a)(1) After a court has determined or approved a property settle- 
ment agreement establishing the party responsible for any joint credit 
card account debt in a divorce action maintained or being maintained in 
the courts of this state, the nonresponsible party may notify the issuer 
of the credit card of the court order by sending a written notice 
containing the account name and account number of the joint credit 
card accompanied by a certified copy of the court order and property 
settlement agreement, if any, by certified mail, return receipt requested 
to: 

(A) The address that the issuer has designated for making pay- 
ments on the credit card account; or 

(B) The customer service address provided by the issuer. 

(2) On the date the notice is processed by the issuer of the credit card, 
not later than the fourth business day after receipt of the notice by the 
issuer, the nonresponsible party shall not be liable for any new charges 
on the credit card, other than charges made by the nonresponsible 
party, but shall remain liable for the balance due prior to the date the 
issuer processes the notice and all interest and late fees accrued or 
thereafter accruing on the balance. 

(b)(1) The issuer of the credit card shall: 

(A) Provide the nonresponsible party with written notification of 
the credit card account balance as of the date of processing the notice; 

(B) Remove the nonresponsible party as an authorized user of the 
credit card account; 

(C) Either cancel the credit card or suspend the effectiveness of the 
credit card for a period not exceeding thirty (30) days to allow the 
issuer to evaluate any request by the responsible party to continue 
the account as a separate credit card account of the responsible party; 
and 

(D) Apply all payment made after the date of processing the notice: 
(i) First to any fees assessed against the account; 

(ii) Next to the accrued interest; 

(iii) Next to the principal of the debt existing on the date of 
processing the notice; and 

(iv) Finally to the principal of any debt incurred after the date of 
the processing of the notice. 

(c)(1) This section does not prohibit the issuer of the credit card from 
issuing a new credit card to the responsible party. 



283 DIVORCE AND ANNULMENT 9-12-325 

(2) If as a result of receiving the notice under this section, a new 
credit card is issued in the name of the responsible party, the issuer 
may: 

(A) Transfer the outstanding debt to the new credit card account 
for which the responsible party is solely responsible; or 

(B) Issue the new credit card with a zero ($0.00) balance and allow 
no new charges on the original credit card account, and both parties 
who are the obligors on the original credit card account will remain 
responsible for paying the debt from the original account in accor- 
dance with the terms and conditions of the original credit card 
account until the balance is paid in full. 

(d) Proof that the nonresponsible party notified the issuer of the 
credit card in compliance with this section shall be an affirmative 
defense to any action to recover card debt resulting from any charge on 
the account after the date of processing of the notice. 

History. Acts 2003, No. 1477, § 1. 322 may not apply to this section, which 

A.C.R.C. Notes. References to "this was enacted subsequently, 
subchapter" in §§ 9-12-301 through 9-12- 

RESEARCH REFERENCES 

U. Ark. Little Rock L. Rev. Survey of Credit Card Debt, 26 U. Ark. Little Rock 
Legislation, 2003 Arkansas General As- L. Rev. 418. 
sembly, Family Law, Protection from 

9-12-324. Decree dissolving a covenant marriage. 

In all divorce decrees that dissolve a covenant marriage created 
under the Covenant Marriage Act of 2001, § 9-11-801 et seq., the court 
shall enter a finding that the marriage being dissolved is a covenant 
marriage. 

History. Acts 2005, No. 1890, § 2. effective date of this act." 

A.C.R.C. Notes. Acts 2005, No. 1890, Acts 2005, No. 1890 became effective 

§ 3, provided: "This act shall apply to all August 12, 2005. 

petitions for divorce filed on or after the 

9-12-325. Condonation abolished. 

(a) The defense of condonation to any action for absolute divorce or 
divorce from bed and board is abolished. 

(b) The abolition of the defense of condonation under this section 
shall not affect the application of § 9-12-308. 

History. Acts 2005, No. 182, § 1. consent, or equal guilt of parties, § 9-12- 

Cross References. Effect of collusion, 308. 



FAMILY LAW 

CHAPTER 13 
CHILD CUSTODY AND VISITATION 



284 



subchapter. 

1. General Provisions. 

2. Uniform Child Custody Jurisdiction Act. [Repealed.] 

3. Personal Records of Child. 

4. International Child Abduction Prevention Act. 



Publisher's Notes. As to jurisdiction of 
circuit court over certain proceedings, see 
§ 9-27-306. 



RESEARCH REFERENCES 



A.L.R. Social worker's expert testimony 
on custody issue. 1 A.L.R.4th 837. 

Parent's physical disability or handicap 
as factor in custody award or proceedings. 
3 A.L.R.4th 1044. 

Initial award or denial of child custody 
to homosexual or lesbian parent. 6 
A.L.R.4th 1297. 

Natural parent and stepparent: custody 
award. 10 A.L.R.4th 767. 

Race as factor in custody proceedings. 
10 A.L.R.4th 796. 

Desire of child as to geographical loca- 
tion as factor in awarding custody or ter- 
minating parental rights. 10 A.L.R.4th 
827. 

Retention of custody by mother incar- 
cerated in penal institution. 14 A.L.R.4th 
748. 

Necessity of requiring presence in court 
of both parties in proceedings relating to 
custody or visitation of children. 15 
A.L.R.4th 864. 

Joint custody. 17 A.L.R.4th 1013. 

Propriety of awarding custody of child 
to parent residing or intending to reside in 
foreign country. 20 A.L.R.4th 677. 

Kidnapping or related offense by taking 
or removing of child by or under authority 
of parent or one in loco parentis. 20 
A.L.R.4th 823. 

Religion as factor in custody. 22 
A.L.R.4th 971. 

Interference by custodian with noncus- 
todial parent's visitation rights as 
grounds for change. 28 A.L.R.4th 9. 

Court-authorized permanent or tempo- 
rary removal of child by parent to foreign 
country. 30 A.L.R.4th 548. 



Temporary conditional relinquishment 
of custody. 35 A.L.R.4th 61. 

Homosexual or lesbian parent: visita- 
tion rights of. 36 A.L.R.4th 997. 

Statute allowing endangered child to be 
temporarily removed from parental cus- 
tody. 38 A.L.R.4th 756. 

Provision of custody or visitation order 
designed to insulate child from parent's 
extramarital sexual relationships. 40 
A.L.R.4th 812. 

Visitation of adult child against his or 
her wishes, parent's or relative's rights. 40 
A.L.R.4th 846. 

Primary caretaker role of respective 
parents as factor in awarding custody of 
child. 41A.L.R.4th 1129. 

Liability of legal or natural parent, or 
one who aids and abets, for damages re- 
sulting from abduction of own child. 49 
A.L.R.4th 7. 

Right to attorney's fees in proceeding 
for modification of child custody or sup- 
port order after absolute divorce. 57 
A.L.R.4th 710. 

Transsexuality of parent as factor in 
award of custody of children. 59 A.L.R.4th 
1170. 

Employment of mother as factor in 
awarding custody. 62 A.L.R.4th 259. 

Withholding visitation rights for failure 
to make alimony or support payments. 65 
A.L.R.4th 1155. 

Separating children by custody awards 
to different parents-post- 1975 cases. 67 
A.L.R.4th 354. 

Validity and construction of surrogate 
parenting agreement. 77 A.L.R.4th 70. 

Rights and obligations resulting from 



285 



CHILD CUSTODY AND VISITATION 



human artificial insemination. 83 
A.L.R.4th 295. 

Child custody and visitation rights of 
persons infected with AIDS. 86 A.L.R.4th 
211. 

Authority of court, upon entering de- 
fault judgement, to make orders for child 
custody or support which were not specifi- 
cally requested in pleadings of prevailing 
party. 5 A.L.R.5th 863. 

Continuity of residence as factor in con- 
test between parent and nonparent for 
custody of child who has been residing 
with nonparent-modern status. 15 
A.L.R.5th 692. 

Parents use of drugs as a factor in 
award of custody of children, visitation 
rights or termination of parental rights. 
20 A.L.R.5th 534. 

Age of parent as factor in awarding 
custody. 35 A.L.R.5th 57. 

Smoking as a factor in child custody and 
visitation cases. 36 A.L.R.5th 377. 

Full faith and credit "last-in-time" rule 
as applicable to sister state divorce or 
custody judgement which is inconsistent 
with the forum state's earlier judgement. 
36 A.L.R.5th 527. 

Family court jurisdiction to hear con- 
tract claims. 46 A.L.R.5th 73. 

Construction and effect of statutes man- 
dating consideration of, or creating pre- 
sumptions regarding, domestic violence in 
awarding custody of children. 51 
A.L.R.5th 241. 

Mental health of contesting parent as 
factor in award of child custody. 53 
A.L.R.5th 375. 



Initial award or denial of child custody 
to homosexual or lesbian parent. 62 
A.L.R.5th 591. 

Custodial parent's homosexual or les- 
bian relationship with third person as 
justifying modification of child custody 
order. 65 A.L.R.5th 591. 

Custodial parent's relocation as 
grounds for change of custody. 70 
A.L.R.5th 377. 

Am. Jur. 24AAm. Jur. 2d, Divorce & S., 
§ 944 et seq. 

47 Am. Jur. 2d Juvenile Courts, § 1 et 
seq. 

59 Am. Jur. 2d, Parent & C, § 23 et seq. 

Ark. L. Notes. Flaccus, Children and 
Divorce: A Bad Combination and How to 
Make it Better, 2003 Arkansas L. Notes 
13. 

Ark. L. Rev. Note, How a State's Inter- 
ests in a Child's Welfare Are Frustrated 
by Indiscriminate Application of the Final 
Judgment Rule: Arkansas Department of 
Human Services v. Lopez, 44 Ark. L. Rev. 
895. 

C.J.S. 2 C.J.S., Adoption, §§ 65, 139. 

27C C.J.S., Divorce, § 611 et seq. 

38 C.J.S., Gaming, § 109. 

43 C.J.S., Infants, §§ 11 et seq., 24, 27. 

51 C.J.S., Kidnap., § 4. 

67A C. J.S., Parent & C, §§ 9, 10 et seq., 
19, 41, 42-46, 52. 

U. Ark. Little Rock L.J. Parness, Pro- 
spective Fathers and Their Unborn Chil- 
dren, 13 U. Ark. Little Rock L.J. 165. 



Subchapter 1 — General Provisions 



SECTION. 

9-13-101. Award of custody. 

9-13-102. Visitation rights of brothers 
and sisters. 

9-13-103. Visitation rights of grandpar- 
ents when the child is in 
the custody of a parent. 

9-13-104. Transfer of custody on school 
property. 

9-13-105. Criminal records check. 

9-13-106. Attorney ad litem programs. 

9-13-107. Visitation rights of grandpar- 
ents when the parent does 



SECTION. 

not have custody of the 

child. 
9-13-108. Visitation — Preference of 

child. 
9-13-109. Drug testing — Proceedings 

concerning child custody, 

visitation, or the welfare of 

a child. 
9-13-110. Parents who are members of 

the armed forces. 



FAMILY LAW 



286 



Preambles. Acts 2007, No. 301 con- 
tained a preamble which read: 

"WHEREAS, members of the armed 
forces of the United States play a vital role 
in our national security and in the secu- 
rity and safety of the State of Arkansas; 
and 

"WHEREAS, it is vital to the short-term 
and long-term interests of the armed 
forces of the United States, and therefore 
the nation and this state, to attract and 
retain qualified, competent people; a sub- 
stantial number of Arkansas adults have 
children from relationships that have ter- 
minated through divorce or otherwise; 
and it is contrary to public policy to dis- 
courage these adults from service in the 
armed forces; and 

"WHEREAS, recent national emergen- 
cies have demonstrated that noncustodial 
parents will sometimes attempt to use a 
custodial parent's military mobilization, 
in and of itself, as a 'material change in 
circumstances' to attempt to justify a 
change in custody; and 

"WHEREAS, recent national emergen- 
cies have demonstrated that parents with 
physical custody of a child or children will 
sometimes use the fact of the noncustodial 
parent's military mobilization as an ex- 
cuse to deny or curtail the visitation of the 
noncustodial parent; such visitation is 
even more critical to both parent and child 
during military mobilization and deploy- 
ment than it would be under normal cir- 
cumstances; and 

"WHEREAS, periods of military mobili- 
zation and deployment are stressful 
enough for a service member and his or 
her children without facing the added 
stress of court proceedings and of poten- 
tially losing custody rights or visitation 
rights; and 

"WHEREAS, children of members of the 
armed forces of the United States should 
not view service to their country as a 
negative experience to be avoided, 

"NOW THEREFORE, BE IT EN- 
ACTED BY THE GENERAL ASSEMBLY 
OF THE STATE OF ARKANSAS:" 

Effective Dates. Acts 1979, No. 278, 
§ 3: Mar 6, 1979. Emergency clause pro- 
vided: "It is hereby found and determined 
by the General Assembly of the State of 
Arkansas that it is exceedingly difficult 
for divorced fathers to obtain custody of 
their children, notwithstanding that they 
are more qualified in many instances than 



the divorced mothers, and that this re- 
sults in an environment detrimental to 
the welfare of the children. Therefore, an 
emergency is hereby declared to exist and 
this Act, being necessary for the immedi- 
ate preservation of the public peace, 
health and safety, shall be in full force 
from the date of its passage and approval." 

Acts 1981, No. 920, § 3: Mar. 30, 1981. 
Emergency clause provided: "It is hereby 
found and determined by the General As- 
sembly that in some cases where parents, 
having custody over a child, deny that 
child the privilege of seeing or visiting the 
child's brother(s) and/or sister(s) regard- 
less of the degree of blood relationship; 
that it is in the best interests of the 
citizens of this State that provisions be 
made whereby the chancery courts may, 
upon petition of any brother or sister 
regardless of the degree of blood relation- 
ship, or parent, guardian or next friend of 
such party, grant such brother or sister 
regardless of the degree of blood relation- 
ship reasonable rights of visitation with 
any brother(s) and/or sister(s) regardless 
of the degree of blood relationship whose 
parents have denied such access; that this 
Act is designed to specifically authorize 
the chancery courts to grant such visita- 
tion rights and to issue orders necessary 
to enforce such visitation rights and 
should be given immediate effect." 

Acts 1987, No. 17, § 3: Feb. 9, 1987. 
Emergency clause provided: "It is hereby 
found and determined by the General As- 
sembly that Act 403 of 1985 was intended 
to apply only when the marital relation- 
ship between the parents of a child has 
been severed by death, divorce or legal 
separation; that Act 403 contains lan- 
guage which may result in confusion re- 
garding its applicability; that this Act 
eliminates that confusing language; and 
that this Act should be given immediate 
effect in order to prevent a misinterpreta- 
tion of the law to the detriment of chil- 
dren. Therefore, an emergency is hereby 
declared to exist and this Act being imme- 
diately necessary for the preservation of 
the public peace, health and safety shall 
be in full force and effect from and after its 
passage and approval." 

Acts 1999, No. 708, § 7: July 1, 1999. 
Emergency clause provided: "It is hereby 
found and determined by the Eighty-sec- 
ond General Assembly that the effective- 
ness of this act on July 1, 1999 is essential 



287 



CHILD CUSTODY AND VISITATION 



9-13-101 



to the operation of the state court system, 
and that in the event of an extension of 
the Regular Session, the delay in the 
effective date of this act beyond July 1, 
1999 could work irreparable harm upon 
the proper administration and provision 
of essential governmental progress. 
Therefore, an emergency is declared to 
exist and this act being immediately nec- 
essary for the preservation of the public 
peace, health and safety shall become ef- 
fective on July 1, 1999." 

Acts 2003, No. 652, § 3: Mar. 25, 2003. 
Emergency clause provided: "It is found 
and determined by the General Assembly 
of the State of Arkansas that our grand- 
parents visitation law has been declared 
substantially unconstitutional by the Ar- 
kansas Supreme Court; that the Arkansas 
Supreme Court has asked the legislature 
to rewrite the law; that over fifty-five 
thousand (55,000) grandparents are rais- 
ing their grandchildren in this state and 
they have no right to continue their rela- 
tionship with their grandchildren if the 
parent limits or denies contact; that under 
current law, children are being denied 
visitation with grandparents with whom 
they have significant and viable relation- 
ships; that it is the public policy of this 
state to protect the best interest of the 
child; and that this act is immediately 
necessary to protect the best interest of 
children in this state because the denial of 
visitation with grandparents with whom 
the children have significant and viable 
relationships is harming children. There- 
fore, an emergency is declared to exist and 
this act being immediately necessary for 
the preservation of the public peace, 
health, and safety shall become effective 
on: (1) The date of its approval by the 
Governor; (2) If the bill is neither ap- 



proved nor vetoed by the Governor, the 
expiration of the period of time during 
which the Governor may veto the bill; or 
(3) If the bill is vetoed by the Governor 
and the veto is overridden, the date the 
last house overrides the veto." 

Acts 2007, No. 301, § 2: Mar. 16, 2007. 
Emergency clause provided: "It is found 
and determined by the General Assembly 
of the State of Arkansas that members of 
the armed forces are spending inordinate 
time and energy dealing with issues of 
child custody and visitation as a sole con- 
sequence of being mobilized in support of 
national emergencies; that such issues 
detract and degrade from morale, train- 
ing, military readiness, and mission ac- 
complishment and, therefore, have a di- 
rect adverse impact on the security of the 
United States and this state; that recent 
national military mobilizations of Arkan- 
sas members of the armed forces have 
magnified these problems; that adding the 
stress of potential permanent changes in 
custody or visitation during a time when a 
parent is mobilized to military service is 
generally not in the best interest of the 
child, and that this act is immediately 
necessary to protect the security of the 
United States and the State of Arkansas 
and to protect the best interests of chil- 
dren. Therefore, an emergency is declared 
to exist and this act being necessary for 
the preservation of the public peace, 
health, and safety shall become effective 
on: (1) The date of its approval by the 
Governor; (2) If the bill is neither ap- 
proved nor vetoed by the Governor, the 
expiration of the period of time during 
which the Governor may veto the bill; or 
(3) If the bill is vetoed by the Governor 
and the veto is overridden, the date the 
last house overrides the veto." 



RESEARCH REFERENCES 



U. Ark. Little Rock L. Rev. Annual 
Survey of Caselaw: Family Law, 27 U. 
Ark. Little Rock L. Rev. 731. 



9-13-101. Award of custody. 

(a)(l)(A)(i) In an action for divorce, the award of custody of a child of 
the marriage shall be made without regard to the sex of a parent but 



9-13-101 FAMILY LAW 288 

solely in accordance with the welfare and best interest of the child. 

(ii) In determining the best interest of the child, the court may 
consider the preferences of the child if the child is of a sufficient age 
and capacity to reason, regardless of chronological age. 

(B) When a court order holds that it is in the best interest of a child 
to award custody to a grandparent, the award of custody shall be 
made without regard to the sex of the grandparent. 
(2)(A) Upon petition by a grandparent who meets the requirements 
of subsection (b) of this section and subdivision (a)(1) of this section, 
a circuit court shall grant the grandparent a right to intervene 
pursuant to Rule 24(a) of the Arkansas Rules of Civil Procedure. 

(B)(i) A grandparent shall be entitled to notice and shall be 
granted an opportunity to be heard in any child custody proceeding 
involving a grandchild who is twelve (12) months of age or younger 
when: 

(a) A grandchild resides with this grandparent for at least six (6) 
continuous months prior to the grandchild's first birthday; 

(b) The grandparent was the primary caregiver for and financial 
supporter of the grandchild during the time the grandchild resided 
with the grandparent; and 

(c) The continuous custody occurred within one (1) year of the date 
the child custody proceeding was initiated. 

(ii) A grandparent shall be entitled to notice and shall be granted 
an opportunity to be heard in any child custody proceeding involving 
a grandchild who is twelve (12) months of age or older when: 

(a) A grandchild resides with this grandparent for at least one (1) 
continuous year regardless of age; 

(b) The grandparent was the primary caregiver for and financial 
supporter of the grandchild during the time the grandchild resided 
with the grandparent; and 

(c) The continuous custody occurred within one (1) year of the date 
the child custody proceeding was initiated. 

(iii) Notice to a grandparent shall be given by the moving party. 
(3) For purposes of this section, "grandparent" does not mean a 
parent of a putative father of a child. 

(4)(A) The party that initiates a child custody proceeding shall notify 
the circuit court of the name and address of any grandparent who is 
entitled to notice under the provisions of subdivision (a)(1) of this 
section. 

(B) The notice shall be in accordance with § 16-55-114. 
(b)(l)(A)(i) When in the best interests of a child, custody shall be 
awarded in such a way so as to assure the frequent and continuing 
contact of the child with both parents. 

(ii) To this effect, the circuit court may consider awarding joint 
custody of a child to the parents in making an order for custody. 

(B) If a grandparent meets the requirements of subdivisions (a)(1) 
and (a)(2)(B) of this section and is a party to the proceedings, the 
circuit court may consider the continuing contact between the child 



289 CHILD CUSTODY AND VISITATION 9-13-101 

and a grandparent who is a party, and the circuit court may consider 

orders to assure the continuing contact between the grandparent and 

the child. 

(2) To this effect, in making an order for custody, the court may 
consider, among other facts, which party is more likely to allow the 
child or children frequent and continuing contact with the noncustodial 
parent and the noncustodial grandparent who meets the requirements 
of subdivisions (a)(1) and (a)(2)(B) of this section. 

(c)(1) If a party to an action concerning custody of or a right to 
visitation with a child has committed an act of domestic violence 
against the party making the allegation or a family or household 
member of either party and such allegations are proven by a prepon- 
derance of the evidence, the circuit court must consider the effect of 
such domestic violence upon the best interests of the child, whether or 
not the child was physically injured or personally witnessed the abuse, 
together with such facts and circumstances as the circuit court deems 
relevant in making a direction pursuant to this section. 

(2) There is a rebuttable presumption that it is not in the best 
interest of the child to be placed in the custody of an abusive parent in 
cases in which there is a finding by a preponderance of the evidence 
that the parent has engaged in a pattern of domestic abuse. 

(d)(1) If a party to an action concerning custody of or a right to 
visitation with a child is a sex offender who is required to register under 
the Sex Offender Registration Act of 1997, § 12-12-901 et seq., the 
circuit court may not award custody or unsupervised visitation of the 
child to the sex offender unless the circuit court makes a specific finding 
that the sex offender poses no danger to the child. 

(2) There is a rebuttable presumption that it is not in the best 
interest of the child to be placed in the care or custody of a sex offender 
or to have unsupervised visitation with a sex offender. 

(e)(1) The Director of the Administrative Office of the Courts is 
authorized to establish an attorney ad litem program to represent 
children in circuit court cases in which custody is an issue. 

(2) When a circuit judge determines that the appointment of an 
attorney ad litem would facilitate a case in which custody is an issue 
and further protect the rights of the child, the circuit judge may appoint 
a private attorney to represent the child. 

(3)(A) The Supreme Court, with the advice of the circuit judges, shall 

adopt standards of practice and qualifications for service for attor- 
neys who seek to be appointed to provide legal representation for 

children in custody cases. 

(B)(i) In extraordinary cases, the circuit court may appoint an 

attorney ad litem who does not meet the required standards and 

qualifications. 

(ii) The attorney may not be appointed in subsequent cases until 

he or she has made efforts to meet the standards and qualifications. 

(4) When attorneys are appointed pursuant to subdivision (e)(2) of 
this section, the fees for services and reimbursable expenses shall be 



9-13-101 FAMILY LAW 290 

paid from funds appropriated for that purpose to the Administrative 

Office of the Courts. 

(5)(A) When a circuit judge orders the payment of funds for the fees 
and expenses authorized by this section, the circuit judge shall 
transmit a copy of the order to the office, which is authorized to pay 
the funds. 

(B) The circuit court may also require the parties to pay all or a 
portion of the expenses, depending on the ability of the parties to pay. 

(6) The office shall establish guidelines to provide a maximum 
amount of expenses and fees per hour and per case that will be paid 
pursuant to this section. 

(7) In order to ensure that each judicial district will have an 
appropriate amount of funds to utilize for ad litem representation in 
custody cases, the funds appropriated shall be apportioned based upon 
a formula developed by the office and approved by the Arkansas 
Judicial Council and the Subcommittee on Administrative Rules and 
Regulations of the Legislative Council. 

(8)(A) The office shall develop a statistical survey that each attorney 
who serves as an ad litem shall complete upon the conclusion of the 
case. 

(B) Statistics shall include the ages of children served, whether 
the custody issue arises at a divorce or post-divorce stage, whether 
psychological services were ordered, and any other relevant informa- 
tion. 

History. Acts 1979, No. 278, § 1; A.S.A. Amendments. The 2007 amendment 

1947, § 34-2726; Acts 1997, No. 905, § 1; substituted "If for "Where" at the begin- 

1997, No. 1328 § 1; 1999, No. 708, § 2; ningof (c)(1); substituted "is" for "shall be" 

2001, No. 1235, § 1; 2001, No. 1497, § 1; in (c)(2); inserted present (d) and redesig- 

2003, No. 92, § 1; 2005, No. 80, § 1; 2007, nated former (d) as (e); and substituted 

No. 56, § 1. "(e)(2)" for "(d)(2)" in (e)(4). 

RESEARCH REFERENCES 

A.L.R. Religion as factor in visitation Survey of Legislation, 2003 Arkansas 

cases. 95 A.L.R.5th 533. General Assembly, Family Law, Joint Cus- 

Restrictions on parent's child visitation tody, 26 U. Ark. Little Rock L. Rev. 407. 

rights based on parent's sexual conduct. Note, Family Law — Relocation Dis- 

99 A.L.R.5th 475. putes — From Paycheck to Paycheck: The 

Religion as factor in child custody cases. Demotion of the Noncustodial Parent with 

124A.L.R.5th 203. the Creation of the Custodial Parent's 

U. Ark. Little Rock L.J. Shively, Sur- Presumptive Right to Relocate. Holland- 

vey of Family Law, 3 U. Ark. Little Rock sworth v. Knyzewski, 353 Ark 470, 109 

L.J. 223. S.W.3d 653 (2003), 26 U. Ark. Little Rock 

Survey of Arkansas Law: Family Law, 6 L. Rev. 615. 

U. Ark. Little Rock L.J. 159. Annual Survey of Caselaw, Family Law, 

Arkansas Law Survey, Morgan, Family 26 U. Ark. Little Rock L. Rev. 921. 

Law, 8 U. Ark. Little Rock L.J. 169. Annuary Survey of Caselaw: Family 

U. Ark. Little Rock L. Rev. Survey of Law, 27 U. Ark. Little Rock L. Rev. 731. 

Legislation, 2001 Arkansas General As- Survey of Legislation, 2005 Arkansas 

sembly, Family Law, 24 U. Ark. Little General Assembly, Family Law, 28 U. Ark. 

Rock L. Rev. 483. Little Rock L. Rev. 357. 



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CASE NOTES 



Analysis 

In General. 

Purpose. 

Basis of Award. 

— In General. 

— Drug Use. 

— Grandparents . 

Burden of Proof. 

Change in Custody Not Warranted. 

Change in Custody Warranted. 

Conduct of Parent. 

Evidence. 

Fault. 

Grandparents' Rights. 

Indian Child Welfare Act. 

Keeping Siblings Together. 

Modification. 

Parental Visitation Rights. 

Preference. 

Presumptions. 

Racial Bias. 

Remarriage. 

Standard of Review. 

In General. 

There is, in effect, no "final order" in a 
custody case, until the children have 
reached their majority; in essence, all or- 
ders of custody are "temporary" by their 
very nature. Purtle v. Committee on Pro- 
fessional Conduct, 317 Ark. 278, 878 
S.W2d 714 (1994). 

Joint custody or equally divided custody 
of minor children is disfavored in Arkan- 
sas; however, subdivision (b)(l)(A)(ii) of 
this section specifically permits a court to 
consider such an award. Bailey v. Bailey, 
97 Ark. App. 96, 244 S.W.3d 712 (2006). 

Under Ark. R. App. P. Civ. 3(e), the 
appellate court did not have jurisdiction to 
entertain the father's argument pertain- 
ing to custody as he made no mention in 
notice of appeal of divorce decree, in which 
the trial court granted custody of the child 
to the mother; the mother could relocate 
to Australia with the child, and a standard 
visitation schedule with the child by the 
father was not feasible given the circum- 
stances of the case. Rawe v. Rawe, 100 
Ark. App. 90, 264 S.W3d 549 (2007). 

Purpose. 

The clear language of the section indi- 
cates that the legislature fully intended to 
abolish any legal preference given a par- 



ent when that preference is based on gen- 
der. Drewry v. Drewry, 3 Ark. App. 97, 622 
S.W2d 206 (1981); Riddle v. Riddle, 28 
Ark. App. 344, 775 S.W.2d 513 (1989). 

Basis of Award. 

— In General. 

Children of tender years need a moth- 
er's care and the custody of the children 
should not be divided. Disheroon v. Dishe- 
roon, 211 Ark. 519, 201 S.W.2d 17 (1947). 

While it is unusual to award custody of 
young children to any one other than their 
mother, it is not unheard of and where 
estimable evidence existed in support of 
the chancellor's award of custody of chil- 
dren to the father, the decision would not 
be reversed. Stephenson v. Stephenson, 
237 Ark. 724, 375 S.W.2d 659 (1964). 

Denial of a petition to take custody of a 
father's children was not against clear 
preponderance of evidence. Mabry v. 
Mabry, 243 Ark. 543, 420 S.W2d 856 
(1967). 

Evidence sufficient to sustain court 
finding that husband was entitled to legal 
custody of children. Miller v. Johnson, 252 
Ark. 697, 480 S.W2d 574 (1972). 

While it is permissible for the chancel- 
lor to make an award of custody or visita- 
tion after hearing the opinions of experts, 
he cannot delegate this judicial function to 
someone outside the court, especially to 
an expert employed by one of the parties. 
Jones v. Jones, 326 Ark. 481, 931 S.W2d 
767 (1996). 

Where a person stands in loco parentis 
to a child, rather than a person or persons 
who simply have a relationship with the 
child, the finding of an in loco parentis 
relationship is different from the grand- 
parent relationships found in prior Arkan- 
sas precedent because it concerns a person 
who in all practical respects is a parent; 
further, the status of in loco parentis per- 
mits, where circumstances warrant, that 
a stepparent be granted visitation with a 
stepchild after a divorce. Robinson v. 
Ford-Robinson, 88 Ark. App. 151, 196 
S.W.3d 503 (2004). 

— Drug Use. 

Chancellor did not abuse his discretion 
in considering prescription drug use of 
parent seeking custody as a factor in de- 
termining what was in child's best inter- 



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292 



est, where he found parent was taking 
some of the drugs for mood swings and 
child needed stability. Rector v. Rector, 58 
Ark. App. 132, 947 S.W.2d 389 (1997). 

Chancellor could consider that parent 
seeking custody had gone to the trouble 
and expense of having tests for illegal 
drug use performed, because it went to the 
credibility of his testimony that he had 
stopped using illegal drugs, although the 
results of the tests were not introduced 
after opposing counsel objected to their 
admission. Rector v. Rector, 58 Ark. App. 
132, 947 S.W.2d 389 (1997). 

— Grandparents. 

Paternal grandparents could not pre- 
vail against mother in action over custody 
of children in absence of a showing that 
modification of decree was to the best 
interest of the children, it being firmly 
settled that, as between a parent and a 
grandparent, the law awards custody to 
the parent unless he or she is incompetent 
or unfit to have the custody of the chil- 
dren. Feight v. Feight, 253 Ark. 950, 490 
S.W.2d 140 (1973). 

In child custody matters, the court must 
keep in view primarily the welfare of the 
minor child, and, as between parent and 
grandparent, the law prefers the parent 
unless the parent is incompetent or unfit; 
also custody is not awarded to comfort the 
emotions of either parent. Perkins v. Per- 
kins, 266 Ark. 957, 589 S.W.2d 588 (Ct. 
App. 1979). 

Burden of Proof. 

Father required to return minor child to 
the mother where the chancellor erred in 
shifting the burden of proof away from the 
father, as the party seeking custody modi- 
fication, to require the mother, the custo- 
dial parent, to prove her ability to ad- 
equately provide a stable home 
environment for the child. Jones v. Jones, 
326 Ark. 481, 931 S.W.2d 767 (1996). 

Change in Custody Not Warranted. 

The fact that the female children were 
soon to enter puberty was not a material 
change in circumstances allowing a 
change in custody from the father to the 
mother. Harrington v. Harrington, 55 Ark. 
App. 22, 928 S.W.2d 806 (1996). 

Trial court erred by changing custody 
based on a mother's motion to relocate 
because there was no evidence to support 
a finding that the mother was attempting 



to move without permission of the court; 
moreover, the mother was not intention- 
ally frustrating the father's visitation 
rights. Durham v. Durham, 82 Ark. App. 
562, 120 S.W.'Sd 129 (2003). 

Change of custody from mother to fa- 
ther was unwarranted as no material 
change in circumstances had occurred; a 
finding that the mother was in contempt 
was insufficient to justify such a change 
where the children were well-cared for, 
doing well in school, and the father's liv- 
ing conditions were less than desirable. 
Bernal v. Shirley, 96 Ark. App. 148, 239 
S.W3d 11 (2006). 

Change in custody of two minor chil- 
dren from the mother to the father based 
solely on the children's preferences was 
improper as a determination first had to 
be made as to whether a material change 
in circumstances had occurred, and the 
trial court specifically found that there 
was no change in circumstances. Henley v. 
Medlock, 97 Ark. App. 45, 244 S.W3d 16 
(2006). 

Record did not support the initial mate- 
rial change of circumstances finding, be- 
cause the scattering of petty complaints 
did not amount to a failure to foster of a 
significant degree to support a finding of 
changed circumstances. Byrd v. Vander- 
pool, 104 Ark. App. 239, — S.W3d — 
(2009). 

Appellate court erred in overturning a 
trial court order denying a mother's mo- 
tion for a change of custody because the 
mother failed to prove a material change 
of circumstances so as to justify a change 
of custody; the child continued to thrive in 
the father's custody and was a good stu- 
dent despite conflicts between the par- 
ents. Stehle v. Zimmerebner, 375 Ark. 446, 
— S.W3d — , 2009 Ark. LEXIS 207 (Jan. 
30, 2009). 

Change in Custody Warranted. 

Where both father and mother had re- 
married, and the mother had moved the 
children several hundred miles from 
where the children's father and extended 
family reside, the several significant 
changed circumstances meant that it was 
in the best interest of the children to be in 
their father's custody. Riley v. Riley, 45 
Ark. App. 165, 873 S.W2d 564 (1994). 

Although temporary custody had been 
awarded to the father, the chancellor's 
permanent award of custody to the 



293 



CHILD CUSTODY AND VISITATION 



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mother was upheld. Milum v. Milum, 49 
Ark. App. 3, 894 S.W.2d 611 (1995). 

Where parent to whom custody was 
originally awarded remarried to person 
convicted of misdemeanor narcotics of- 
fenses and harassment, and began to as- 
sociate with others with criminal records 
in the presence of the child, such circum- 
stances warranted a change in custody. 
Stone v. Steed, 54 Ark. App. 11, 923 S.W.2d 
282 (1996). 

Change of custody of thirteen-year-old 
boy from mother to father was affirmed 
where the chancellor made a difficult de- 
cision based on extensive and varied tes- 
timony, and was in a better position to 
determine the credibility of the witnesses 
and the best interest of the child. Turner v. 
Benson, 59 Ark. App. 108, 953 S.W.2d 596 
(1997). 

Where the father presented sufficient 
evidence that the mother exhibited hostil- 
ity, a lack of cooperation, withheld visita- 
tion, exhibited immorality and promiscu- 
ity which was evident from her admission 
that she lived with a man to whom she 
was not married but who was the father of 
her younger child, failed to remain fully 
employed, and demonstrated irresponsi- 
bility by failing to maintain a stable home 
for the child, the trial judge should have 
found that the totality of the evidence 
constituted a material change in the cir- 
cumstances sufficient enough to warrant a 
change in custody to the father; the fact 
that the father was taking business 
classes, had remarried, and had pur- 
chased a home since the time of the origi- 
nal decree, supported his cause. Walker v. 
Torres, 83 Ark. App. 135, 118 S.W3d 148 
(2003). 

Trial court did not err in ordering a 
change of custody from the mother to the 
father were the trial court (1) determined 
that there had been a material change in 
circumstances, the abuse of another child 
in the home, (2) gave a detailed account of 
the events constituting such a change, 
and (3) found it to be in the best interest of 
the child to order a change of custody. 
Miller v. Ark. Dep't of Human Servs., 86 
Ark. App. 172, 167 S.W3d 153 (2004). 

Modification of a joint custody arrange- 
ment to give full custody to the father was 
appropriate based on the mother's behav- 
ior in the child's presence and the parties' 
disagreement over a custody schedule; al- 
though the trial court inappropriately in- 



cluded as a factual finding that the 
mother, who was African American, dated 
only white men, no challenge to that find- 
ing was preserved for review. Dansby v. 
Dansby, 87 Ark. App. 156, 189 S.W.3d 473 
(2004). 

Order changing custody of a child from 
the mother to the father was affirmed 
where, although trial court relied prima- 
rily on the "illicit sexual relationship" be- 
tween the mother and her new husband 
prior to their marriage, there was other 
evidence of changed conditions, including 
the mother having six or seven different 
residences in the span of six years, while 
the father provided stability; further, 
while it was true that a change of circum- 
stances of the noncustodial parent, includ- 
ing a claim of an improved life because of 
a recent marriage, was not sufficient, 
standing alone, to justify modifying cus- 
tody, a noncustodial parent's remarriage 
could be considered as a factor in deter- 
mining whether there had been a suffi- 
cient change in circumstances affecting 
the best interest of the child. Alphin v. 
Alphin, 364 Ark. 332, 219 S.W3d 160 
(2005). 

Where a mother with primary physical 
custody of her daughter admitted to co- 
habiting with the opposite sex, her con- 
duct was a sufficient change of circum- 
stances demonstrating that a modification 
of child custody was in her daughter's best 
interest and the trial court did not err by 
awarding the father sole custody. Alphin v. 
Alphin, 90 Ark. App. 71, 204 S.W.3d 103 
(2005). 

Grant of father's petition to change cus- 
tody was affirmed as evidence indicated 
that the mother had become increasingly 
unstable since the divorce, that she per- 
sistently failed to take the precaution of 
properly restraining the children with 
seatbelts in the car, and that she had 
amphetamines in her system when she 
got into a car accident. Cozzens v. Coz- 
zens, 93 Ark. App. 415, 220 S.W.3d 257 
(2005). 

Trial court erred in finding that mother 
had failed to prove a material change in 
circumstances requiring a modification of 
custody; custodial father's arrests since 
the divorce and his demeanor at trial 
caused appellate court to be greatly con- 
cerned that he would, by his example, 
teach his son a confrontational approach 
to life that was certain to be self-destruc- 



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294 



tive. Inmon v. Heinley, 94 Ark. App. 40, 
224 S.W.3d 572 (2006). 

Trial court should have granted father's 
motion to change custody of minor child 
with a form of autism where the evidence 
showed that the father made a difference 
in helping the child overcome the symp- 
toms of his disorder, and the trial court's 
statement about discouraging custody 
cases resulted in reversible error. Harris v. 
Grice, 97 Ark. App. 37, 244 S.W.3d 9 
(2006). 

Father's petition for a custody change 
was granted in a case where a mother 
violated a court order by cohabitating 
with six different sexual partners and by 
failing to get along for the sake of the 
child; moreover, she lacked financial, resi- 
dential, and employment stability. The 
change in custody was not due to the 
mother's sexual orientation. Holmes v. 
Holmes, 98 Ark. App. 341, 255 S.W.3d 482 
(2007). 

Mother's continued alienation of a fa- 
ther from the parties' son constituted a 
material change of circumstances that 
warranted awarding the father custody of 
the son and did not constitute punishment 
of the mother when the mother did the 
following: (1) refused to keep the father 
apprised of medical information, espe- 
cially in light of the son's serious medical 
conditions; (2) refused to have the son 
ready for visitation; (3) refused the father 
visitation when the mother decided it was 
in the son's best interest to do so; and (4) 
refused the father the first right to babysit 
the son. Sharp v. Keeler, 99 Ark. App. 42, 
256 S.W.3d 528 (2007). 

Order awarding the father sole custody 
of the parties' three minor children was 
not clearly against the weight of the evi- 
dence, because there was a substantial 
amount of evidence that the children, who 
had essentially been in the sole custody of 
the father since the mother moved, were 
doing well in school, at home, and in their 
extracurricular activities. The children 
had a stable home environment as they 
had lived in the same home for more than 
five years, the children had a stable aca- 
demic environment as they had all at- 
tended schools in the same school district 
or daycare facility, and the evidence was 
that they were performing well in school. 
Gray v. Gray, 101 Ark. App. 6, 269 S.W.3d 
834 (2007). 



Trial court did not err in finding that a 
change of circumstances existed and in 
granting a father's motion for a change of 
custody and relocation to Texas because 
the children's stepfather's conviction for 
child endangerment against his biological 
son was sufficient to support the finding 
that a material change of circumstances 
occurred to justify reevaluating the best 
interests of the children. Davis v. Deric, — 
Ark. App. — , — S.W.3d — , 2009 Ark. App. 
LEXIS 363 (Apr. 29, 2009). 

Conduct of Parent. 

Chancellor did not find that mother was 
an unfit mother based solely on her homo- 
sexuality; chancellor's primary focus was 
on mother's conduct, not merely her sta- 
tus or sexual preference. Larson v. Larson, 
50 Ark. App. 158, 902 S.W.2d 254 (1995). 

Evidence concerning the moral charac- 
ter of a parent is relevant to the best 
interest of the child and the issue of pa- 
rental custody. Stone v. Steed, 54 Ark. 
App. 11, 923 S.W.2d 282 (1996). 

Arkansas courts have never condoned a 
parent's promiscuous conduct or lifestyle 
when conducted in the presence of the 
child. Dansby v. Dansby, 87 Ark. App. 156, 
189 S.W.3d 473 (2004). 

Award of joint custody to parties in a 
divorce proceeding was clearly erroneous 
considering the attitudes of the parties 
toward each other and toward their re- 
spective roles, the fact that a basis of the 
husband's request for joint custody was 
his concern that the wife might relocate if 
she had sole custody, and the parties' 
differing opinions as to disciplining the 
children. Bailey v. Bailey, 97 Ark. App. 96, 
244 S.W.3d 712 (2006). 

Evidence. 

Testimony that parent had sexually 
abused another child was irrelevant in 
custody proceeding, because neither a 
proper link had been made connecting the 
allegation to the case at hand nor had a 
proper investigation been made into the 
allegations, which were denied by the par- 
ent. Rector v. Rector, 58 Ark. App. 132, 947 
S.W.2d 389 (1997). 

Trial court did not clearly err in award- 
ing custody to the father where it was 
clear that the trial court determined that 
the best interests and welfare of the chil- 
dren would be served by a wholesome 
environment and that such an environ- 



295 



CHILD CUSTODY AND VISITATION 



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ment would exist with the father and not 
the mother, who had moved the children 
to several different states and had several 
different live-in boyfriends. Dorothy v. 
Dorothy, 88 Ark. App. 358, 199 S.W.3d 107 
(2004). 

Order awarding custody of an illegiti- 
mate child to the child's father was proper 
because although the appellate court was 
troubled by the fact that during the pen- 
dency of the custody dispute the father 
was accused of raping the mother and pled 
guilty to falsely imprisoning the mother, 
the trial court's factual findings made it 
clear that it found the mother to be incred- 
ible. Harmon v. Wells, 98 Ark. App. 355, 
255 S.W.3d 501 (2007). 

Fault. 

Fault in the divorce is not necessarily 
the determining factor in awarding cus- 
tody since an award of custody is neither a 
reward nor a punishment for a parent; the 
children's welfare is the controlling con- 
sideration. Burns v. Burns, 312 Ark. 61, 
847 S.W.2d 23 (1993). 

Grandparents* Rights. 

Where the mother's parental rights 
were terminated, the trial court did not 
abuse its discretion by denying the mater- 
nal grandparents' motion to intervene in 
the adoption proceedings. The maternal 
grandparents lost any right they had to 
custody and visitation of the children; this 
section did not apply because they were no 
longer grandparents. Burt v. Ark. HHS, 99 
Ark. App. 402, 261 S.W3d 468 (2007), 
review denied, — Ark. — , — S.W.3d — , 
2008 Ark. LEXIS 69 (Jan. 31, 2008). 

Indian Child Welfare Act. 

Court erred in granting custody of twins 
to their mother's fourth cousin instead of 
to her third cousin, with whom the twins 
had been living as it failed to comply with 
the placement preference in the Indian 
Child Welfare Act of 1978 (ICWA), 25 
U.S.C.S. §§ 1901-1963, and the "best in- 
terest test" was to be weighed against the 
standard of maintaining the integrity of 
the Nation, its culture, its children, and 
its progression through time not to be- 
come extinct. Cutright v. State, 97 Ark. 
App. 70, 244 S.W3d 702 (2006). 

Keeping Siblings Together. 

Although the value of keeping siblings 
together is a factor in determining what is 



in a child's best interest, the awarding of 
child custody based solely on the pre- 
sumption that siblings should be kept 
together is contrary to this section. Atkin- 
son v. Atkinson, 72 Ark. App. 15, 32 S.W3d 
41 (2000). 

Trial court's decision divesting custody 
of two children from their parents and 
awarding custody to their maternal 
grandparents, was clearly erroneous as 
evidence that the children had sustained 
various injuries and illnesses while in 
their father's care did not support a find- 
ing that he was an unfit parent, and the 
children had a half-brother (the father's 
child with his current wife) with whom 
they shared a significant family relation- 
ship. Dunham v. Doyle, 84 Ark. App. 36, 
129 S.W.3d 304 (2003). 

Modification. 

A judicial award of custody should not 
be modified unless it is shown that there 
are changed conditions which demon- 
strate that a modification of the decree is 
in the best interest of the child, or when 
there is a showing of facts affecting the 
best interest of the child that were either 
not presented or were not known by the 
chancellor at the time the original custody 
order was entered. Stamps v. Rawlins, 297 
Ark. 370, 761 S.W.2d 933 (1988). 

The polestar in making a relocation 
determination is the best interest of the 
child and the trial court should take into 
consideration the following matters: (1) 
the reason for the relocation; (2) the edu- 
cational, health, and leisure opportunities 
available in the location in which the 
custodial parent and children will relo- 
cate; (3) visitation and communication 
schedule for the noncustodial parent; (4) 
the effect of the move on the extended 
family relationships in the location in 
which the custodial parent and children 
will relocate, as well as Arkansas; and (5) 
preference of the child, including the age, 
maturity, and the reasons given by the 
child as to his or her preference. Holland- 
sworth v. Knyzewski, 353 Ark. 470, 109 
S.W.3d 653 (2003). 

Relocation alone is not a material 
change in circumstance, and a presump- 
tion exists in favor of relocation for custo- 
dial parents with primary custody; the 
noncustodial parent should have the bur- 
den to rebut the relocation presumption, 
and the custodial parent no longer has the 



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296 



obligation to prove a real advantage to 
herself or himself and to the children in 
relocating. Hollandsworth v. Knyzewski, 
353 Ark. 470, 109 S.W.3d 653 (2003). 

Custody changed from mother to father 
in a modification action brought a year 
after the divorce where the mother's situ- 
ation had radically improved, even though 
the father's situation had not substan- 
tially changed since the divorce. Mason v. 
Mason, 82 Ark. App. 133, 111 S.W.3d 855 
(2003). 

For a change of custody, the chancellor 
must first determine that a material 
change in circumstances has occurred 
since the last order of custody; if that 
threshold requirement is met, the chan- 
cellor must then determine who should 
have custody with the sole consideration 
being the best interest of the children. 
Tipton v. Aaron, 87 Ark. App. 1, 185 
S.W.3d 142 (2004). 

Joint custody or equally divided custody 
of minor children is not favored in Arkan- 
sas, and when the parties have fallen into 
such discord that they are unable to coop- 
erate in sharing the physical care of the 
children, this constitutes a material 
change in circumstances affecting the 
children's best interest. Dansby v. Dansby, 
87 Ark. App. 156, 189 S.W.3d 473 (2004). 

Where a mother made unsubstantiated 
sexual abuse allegations, a trial court did 
not err by awarding custody to a father in 
a family-in-need-of-services case under 
§ 9-27-338, because it was not in the 
child's best interest to return to the 
mother where the child was doing better 
while not in her custody; moreover, the 
father did not have to show a material 
change in circumstances since this was 
not a regular custody proceeding. Judkins 
v. Duvall, 97 Ark. App. 260, 248 S.W.3d 
492 (2007). 

Even recognizing a father's bad conduct 
in creating trouble concerning the interre- 
lationships among himself, the child, and 
the child's mother, the court could not 
overlook the evidence that was before the 
trial court and could not conclude that it 
rose to the level that would constitute a 
change of circumstances, especially in 
light of a doctor's testimony that a reduc- 
tion in visitation would not be beneficial to 
the child. Williams v. Ramsey, 101 Ark. 
App. 61, 270 S.W3d 345 (2007). 

Substantial evidence supported find- 
ings that a father, in contravention of 



court orders, continued to refer to his 
current wife as the child's "Mommy" and 
that he failed to give the child her medi- 
cation. The evidence established that the 
father willfully and intentionally violated 
prior court orders and supported the trial 
court's holding him in contempt. Williams 
v. Ramsey, 101 Ark. App. 61, 270 S.W3d 
345 (2007). 

Parental Visitation Rights. 

The party desiring to change the cus- 
tody of a child whose custody has been 
judicially determined in a divorce decree, 
must show altered conditions affecting the 
welfare of the child or that material facts 
as to the situation were not made known 
to the court in the original proceedings. 
Marr v. Marr, 213 Ark. 117, 209 S.W2d 
456(1948). 

Conditions found to have altered the 
circumstances under which the original 
custody decree was entered to such an 
extent as to warrant a change of custody 
to benefit the children. Powell v. Woolfolk, 
233 Ark. 893, 349 S.W.2d 657 (1961). 

Ajudicial award of custody would not be 
modified unless it was shown that there 
were changed conditions which demon- 
strated that a modification of the decree 
was to the best interest of the children. 
Feight v. Feight, 253 Ark. 950, 490 S.W2d 
140 (1973). 

In proceedings to modify order for cus- 
tody of children, violation of court orders 
or contempt of court is a factor to be taken 
into consideration by the court in the 
exercise of its discretion to grant or deny a 
modification of custody orders but is not so 
conclusive as to require the court to act 
contrary to the best welfare of the child. 
Johnson v. Arledge, 258 Ark. 608, 527 
S.W.2d 917 (1975). 

Arkansas courts held to be without ju- 
risdiction to adjudicate parental visitation 
rights under divorce decree rendered in 
another state. Kline v. Kline, 260 Ark. 550, 
542 S.W.2d 499 (1976); Scinta v. Mark- 
ward, 266 Ark. 976, 588 S.W.2d 456 (Ct. 
App. 1979). 

Since this subchapter does not give a 
county chancery court jurisdiction to ad- 
dress the issue of visitation, collateral 
matters such as visitation cannot be 
raised as a defense. State, Jefferson 
County Child Support Enforcement Unit 
v. Robinson, 311 Ark. 133, 842 S.W.2d 47 
(1992). 



297 



CHILD CUSTODY AND VISITATION 



9-13-101 



Under this subchapter, a state court 
could not directly determine visitation; it 
also could not indirectly determine visita- 
tion by making payment of child support 
dependent upon visitation. State, Jeffer- 
son County Child Support Enforcement 
Unit v Robinson, 311 Ark. 133, 842 S.W.2d 
47 (1992). 

A chancery court has the power to use 
its contempt power to enforce its order 
awarding visitation to a stepparent in the 
context of a divorce decree. Young v. 
Smith, 331 Ark. 525, 964 S.W.2d 784 
(1998). 

The parties' past problems with visita- 
tion alone were not dispositive of the ques- 
tions of the integrity of the mother's mo- 
tives for seeking the move to Texas, or the 
likelihood of her compliance with visita- 
tion orders in the future. Friedrich v. 
Bevis, 69 Ark. App. 56, 9 S.W.3d 556 
(2000). 

The trial court should have applied the 
factors to be considered when a custodial 
parent seeks to move with the parties' 
children to a place so geographically dis- 
tant as to render weekly visitation impos- 
sible and impractical, and required 
mother to bear one-half the transporta- 
tion costs where her new job resulted in a 
substantial raise in pay, and her move to 
Texas was wholly voluntary. Friedrich v. 
Bevis, 69 Ark. App. 56, 9 S.W.3d 556 
(2000). 

This section does not confer jurisdiction 
on the trial court to terminate parental 
rights. The statute deals with child cus- 
tody and visitation issues and does not 
address the termination of parental 
rights. Hudson v. Kyle, 352 Ark. 346, 101 
S.W.3d 202 (2003). 

Trial court did not clearly err in struc- 
turing a specific visitation schedule re- 
garding the mother's and the father's son 
after it granted relocation to the mother, 
who moved to Virginia because her hus- 
band had obtained new employment in 
that state; while the visitation order pro- 
vided for the son to spend virtually every 
holiday with the father, each spring break, 
and one weekend each month in which 
there was no holiday or other school vaca- 
tion, the order also provided that the son 
spend all remaining time at the mother's 
household. Rebsamen v. Rebsamen, 82 
Ark. App. 329, 107 S.W.3d 871 (2003). 

Modification of father's visitation rights 
was warranted where elimination of daily 



visits would lessen the need for contact 
between the parties; the social worker 
testified that the animosity between the 
father and mother caused the children a 
great deal of stress and some type of 
modification would be in the best interest 
of the children, and that it was necessary 
to keep the parties on neutral territory 
during pick up and drop off. Meins v. 
Meins, 93 Ark. App. 292, 218 S.W.3d 366 
(2005). 

Although a mother's continued alien- 
ation of a father from the parties' son 
warranted a change in custody, super- 
vised visitation for the mother was not 
warranted when nothing in the psycholo- 
gist's report indicated that the mother had 
mental-health issues that rendered her 
incapable of caring for the son during 
visitation and none of the evidence re- 
vealed that the mother had mistreated the 
son or neglected the son's needs during 
the time the son was in the mother's care. 
Sharp v. Keeler, 99 Ark. App. 42, 256 
S.W.3d 528 (2007). 

Marriage of the biological parents of a 
child, who was born while the mother was 
married to her ex-husband, was not a 
change of circumstances that warranted 
terminating the ex-husband's visitation 
rights which were granted to him in a 
divorce decree; moreover, it would not 
have been in the child's best interests to 
do so because the child had known the 
ex-husband as his father his entire life 
and had enjoyed visitation with him since 
his mother had divorced, and his older 
brother, whom he had known since birth 
and with home he had a good relationship, 
lived with the ex-husband and the record 
indicates that the brother was not wel- 
come in the biological parents' home and, 
therefore, terminating the ex-husband's 
visitation would also disallow the child 
the opportunity to maintain his relation- 
ship with his brother. Hunter v. Haunert, 
101 Ark. App. 93, 270 S.W.3d 339 (2007). 

Father's argument that a trial court 
erroneously refused to enforce visitation 
was rejected because, not only did the 
father fail to object to the visitation ar- 
rangement set out by the trial court, he 
suggested it in the first place. The father 
stated he did not want to force his chil- 
dren to enter into a relationship with him, 
but he also did not want them prevented 
from contacting him if they so desired. 



9-13-101 



FAMILY LAW 



298 



Norman v. Cooper, 101 Ark. App. 446, 278 
S.W.3d 569 (2008). 

Preference. 

A court may award split or full custody 
of a child to a stepparent, but the prefer- 
ence for awarding custody to a natural 
parent must prevail unless it is estab- 
lished that the natural parent is unfit. 
Stamps v. Rawlins, 297 Ark. 370, 761 
S.W.2d 933 (1988). 

Trial court properly granted a father's 
motion to change custody on the ground 
that a change of circumstances had oc- 
curred because the children expressed a 
strong, well-reasoned preference to return 
to Arkansas and their father's custody; 
the children did not oppose a short-term 
move to Missouri for their stepfather's 
career, but did not want to move to Wis- 
consin indefinitely. Myers v. McCall, — 
Ark. App. — , — S.W.3d — , 2009 Ark. App. 
LEXIS 600 (July 1, 2009). 

Presumptions. 

Where it was clear from chancellor's 
remarks that his general view that young 
girls should be raised by their mothers 
was given the force of a presumption in 
deciding custody issue, grant of custody to 
mother was reversed and remanded. Fox 
v. Fox, 31 Ark. App. 122, 788 S.W.2d 743 
(1990). 

Fact that the father had remarried and 
had a new child did not equate to a change 
of circumstances, especially where the 
half-siblings never lived together, and 
even though the mother's request to relo- 
cate to a neighboring state was primarily 
for personal reasons, the trial court im- 
properly failed to apply the presumption 
in favor of a custodial parent's relocation 
in granting father's petition for a change 
of custody. Middleton v. Middleton, 83 
Ark. App. 7, 113 S.W.3d 625 (2003). 

In a custody modification case, the court 
erred by applying the wrong standard 
where it believed that the natural-parent 
preference was binding and that it could 
not deviate from it because determining 
whether the child was to be better off with 
one party versus another was precisely 
what the trial court should have decided; 
the natural-parent preference and the fit- 
ness of that parent were not the absolute 
determinants in custody-modification 
matters. Crosser v. Henson, 357 Ark. 635, 
187 S.W.3d 848 (2004). 



In light of the presumption in favor of 
relocation and the fact that relocation 
alone was not a material change in cir- 
cumstances, the trial court erred in deter- 
mining the custody issue between the fa- 
ther and mother without addressing the 
relocation factors; thus, the matter was 
remanded for the trial court to decide the 
custody issue in conjunction with those 
factors. Jowers v. Jowers, 92 Ark. App. 
374, 214 S.W3d 294 (2005). 

Racial Bias. 

In a child custody case, where the 
mother lived in an interracial household, 
the trial court used private racial biases 
as an impermissible basis for awarding 
child custody to the father; private racial 
biases and the possible injury that they 
might inflict are not permissible consider- 
ations for the removal of a child from the 
custody of its natural mother. Tipton v. 
Aaron, 87 Ark. App. 1, 185 S.W.3d 142 
(2004). 

Remarriage. 

Where, at the time of the original di- 
vorce decree, the father knew he was 
likely to remarry, and voluntarily entered 
into the agreement to award custody of 
the child to the mother, the father's re- 
marriage did not constitute a material 
change in circumstances; the father can- 
not use the circumstances he created as 
grounds to modify custody. Jones v. Jones, 
326 Ark. 481, 931 S.W2d 767 (1996). 

Standard of Review. 

Appellate court reviews child custody 
modification cases de novo and reverses 
only when the trial court's findings are 
clearly erroneous. Dansby v. Dansby, 87 
Ark. App. 156, 189 S.W.3d 473 (2004). 

Because the trial court erred in labeling 
a change of custody in favor of the father 
temporary in nature, a subsequent change 
of custody decision for the mother was 
reversed and remanded because the ma- 
terial change in circumstances standard 
should have been used; this applied to 
every custody determination after an ini- 
tial award in favor of the mother. Hodge v. 
Hodge, 97 Ark. App. 217, 245 S.W3d 695 
(2006). 

Cited: Kimmons v. Kimmons, 1 Ark. 
App. 63, 613 S.W2d 110 (1981); Wing v. 
Wing, 12 Ark. App. 84, 671 S.W.2d 204 
(1984); Golden v. Golden, 57 Ark. App. 
143, 942 S.W.2d 282 (1997); Office of Child 



299 CHILD CUSTODY AND VISITATION 9-13-103 

Support Enforcement v. Lawrence, 57 Ark. 
App. 300, 944 S.W.2d 566 (1997). 

9-13-102. Visitation rights of brothers and sisters. 

The circuit courts of this state, upon petition from any person who is 
a brother or sister, regardless of the degree of blood relationship or, if 
the person is a minor, upon petition by a parent, guardian, or next 
friend in behalf of the minor, may grant reasonable visitation rights to 
the petitioner so as to allow the petitioner the right to visit any brother 
or sister, regardless of the degree of blood relationship, whose parents 
have denied such access. The circuit courts may issue any further order 
that may be necessary to enforce the visitation rights. 

History. Acts 1981, No. 920, § 1; A.S.A. 
1947, § 57-137. 

RESEARCH REFERENCES 

U. Ark. Little Rock L.J. Legislative 
Survey, Family Law, 4 U. Ark. Little Rock 
L.J. 595. 

CASE NOTES 

In General. the issue of parental visitation rights by 

Father, during visitation periods with ordering concurrent sibling visitation 

his daughter, had the right to decide what rights under this section, and that part of 

was in her best interest, including visita- the order was reversed. Medlin v. Weiss, 

tion between and among his daughters, in 356 Ark. 588, 158 S.W.3d 140 (2004). 

his own home, without being physically Cited: Sanders v. Sanders, 297 Ark. 

present; however, the trial court clouded 621, 764 S.W.2d 443 (1989). 

9-13-103. Visitation rights of grandparents when the child is in 
the custody of a parent. 

(a) For purposes of this section: 

(1) "Child" means a minor under eighteen (18) years of age of whom 
the custodian has control and who is: 

(A) The grandchild of the petitioner; or 

(B) The great-grandchild of the petitioner; 

(2) "Counseling" means individual counseling, group counseling, or 
other intervention method; 

(3) "Custodian" means the custodial parent of the child with the 
authority to grant or deny grandparental visitation; 

(4) "Mediation service" means any formal or informal mediation; and 

(5) "Petitioner" means any individual who may petition for visitation 
rights under this section. 

(b) A grandparent or great-grandparent may petition a circuit court 
of this state for reasonable visitation rights with respect to his or her 
grandchild or grandchildren or great-grandchild or great-grandchildren 
under this section if: 



9-13-103 FAMILY LAW 300 

(1) The marital relationship between the parents of the child has 
been severed by death, divorce, or legal separation; 

(2) The child is illegitimate and the petitioner is a maternal grand- 
parent of the illegitimate child; or 

(3) The child is illegitimate, the petitioner is a paternal grandparent 
of the illegitimate child, and paternity has been established by a court 
of competent jurisdiction. 

(c)(1) There is a rebuttable presumption that a custodian's decision 
denying or limiting visitation to the petitioner is in the best interest of 
the child. 

(2) To rebut the presumption, the petitioner must prove by a prepon- 
derance of the evidence the following: 

(A) The petitioner has established a significant and viable rela- 
tionship with the child for whom he or she is requesting visitation; 
and 

(B) Visitation with the petitioner is in the best interest of the child. 

(d) To establish a significant and viable relationship with the child, 
the petitioner must prove by a preponderance of the evidence the 
following: 

(1)(A) The child resided with the petitioner for at least six (6) 
consecutive months with or without the current custodian present; 

(B) The petitioner was the caregiver to the child on a regular basis 
for at least six (6) consecutive months; or 

(C) The petitioner had frequent or regular contact with the child 
for at least twelve (12) consecutive months; or 

(2) Any other facts that establish that the loss of the relationship 
between the petitioner and the child is likely to harm the child. 

(e) To establish that visitation with the petitioner is in the best 
interest of the child, the petitioner must prove by a preponderance of 
the evidence the following: 

(1) The petitioner has the capacity to give the child love, affection, 
and guidance; 

(2) The loss of the relationship between the petitioner and the child 
is likely to harm the child; and 

(3) The petitioner is willing to cooperate with the custodian if 
visitation with the child is allowed. 

(f)(1) An order granting or denying visitation rights to grandparents 
and great-grandparents shall be in writing and shall state any and all 
factors considered by the court in its decision to grant or deny visitation 
under this section. 

(2)(A) If the court grants visitation to the petitioner or petitioners, 
the visits may occur without regard to which parent has physical 
custody of the child. 

(B) Visits with a paternal grandparent or great-grandparent may 
occur even when the child is in the custody of the mother, and visits 
with a maternal grandparent or great-grandparent may occur even 
when the child is in the custody of the father. 

(3)(A) If the court grants visitation to the petitioner under this 
section, then the visitation shall be exercised in a manner consistent 



301 CHILD CUSTODY AND VISITATION 9-13-103 

with all orders regarding custody of or visitation with the child unless 
the court makes a specific finding otherwise. 

(B) If the court finds that the petitioner's visitation should be 
restricted or limited in any way, then the court shall include the 
restrictions or limitations in the order granting visitation. 

(4) An order granting or denying visitation rights under this section 
is a final order for purposes of appeal. 

(5) After an order granting or denying visitation has been entered 
under this section, the custodian or petitioner may petition the court for 
the following: 

(A) Contempt proceedings if one (1) party to the order fails to 
comply with the order; 

(B) To address the issue of visitation based on a change in 
circumstances; or 

(C) To address the need to add or modify restrictions or limitations 
to visitation previously awarded under this section. 

(g)(1) A court may order mediation services to resolve a visitation 
issue under this section if: 

(A) Mediation services are available; 

(B) Both parties agree to participate in mediation services; and 

(C) One (1) or both of the parties agree to pay for mediation 
services. 

(2) Records, notes, reports, or discussions related to the mediation 
service shall not be used by the court to determine visitation under this 
section. 

(h)(1) A court may order counseling to address underlying matters 
surrounding the visitation issue under this section if: 

(A) Counseling is available; 

(B) Both parties agree to participate in counseling; and 

(C) One (1) or both of the parties agree to pay for counseling. 

(2) Records, notes, reports, or discussions related to the counseling 
shall not be used by the court to determine visitation under this section. 

History. Acts 1985, No. 403, §§ 1, 3; Amendments. The 2009 amendment 
A.S.A. 1947, §§ 34-1211.2, 34-1211.3; Acts inserted (f)(2) and redesignated the subse- 
1987, No. 17, § 1; 1993, No. 1231, § 1; quent subdivisions accordingly. 
1995, No. 1200, § 1; 2003, No. 652, § 1; 
2009, No. 271, § 1. 

RESEARCH REFERENCES 

Ark. L. Rev. Brummer and Looney, Survey, Family Law, 8 U. Ark. Little Rock 

Grandparent Rights in Custody, Adoption, L.J. 577. 

and Visitation Cases, 39 Ark. L. Rev. 259. Survey — Family Law, 10 U. Ark. Little 

Note, Is Arkansas's Grandparent Visita- Rock L.J. 577. 

tion Statute Constitutional Under the Fifteenth Annual Survey of Arkansas 

Standards Articulated By the Arkansas Law, 15 U. Ark. Little Rock L.J. 427. 

Supreme Court in Linder v. Linder?, 58 Legislative Survey, Family Law, 16 U. 

Ark. L. Rev. 197. Ark. Little Rock L.J. 131. 

U. Ark. Little Rock L.J. Legislative U. Ark. Little Rock L. Rev. Annual 



9-13-103 



FAMILY LAW 



302 



Survey of Caselaw, Family Law, • 25 U. 
Ark. Little Rock L. Rev. 988, 992. 

Survey of Legislation, 2003 Arkansas 
General Assembly, Family Law, Grand- 



parents' Visitation Rights, 26 U. Ark. 
Little Rock L. Rev. 411. 



CASE NOTES 



Analysis 

Constitutionality. 

In General. 

Applicability. 

Adoption. 

Great- Aunts. 

Illustrative Cases. 

Jurisdiction. 

Presumption Not Rebutted. 

Constitutionality. 

Failure to allow grandparents who had 
visitation rights to intervene in adoption 
proceedings was inconsistent with their 
due process right to be heard, since the 
adoption court could extinguish the visi- 
tation rights given by the chancery court. 
Quarles v. French, 272 Ark. 51, 611 S.W.2d 
757 (1981) (decision under prior law). 

Adoption statutes did not deprive 
grandparents of rights to grandchildren 
without showing a compelling state inter- 
est, or deprive them of due process, since 
they did not demonstrate any constitu- 
tionally protected right or interest. Cox v. 
Stayton, 273 Ark. 298, 619 S.W.2d 617 
(1981) (decision under prior law). 

This section held constitutional. Reed v. 
Glover, 319 Ark. 16, 889 S.W.2d 729 
(1994). 

This section was unconstitutional as 
applied, and violated the mother's funda- 
mental liberty interest under the due pro- 
cess clause of the U.S. Const., Amend. 14 
§ 1; so long as the mother was fit to care 
for the child, the Fourteenth Amendment 
right attached, and the state could not 
interfere without a compelling interest to 
do so. Linder v. Linder, 348 Ark. 322, 72 
S.W.3d 841 (2002). 

This section does not unconstitutionally 
discriminate between married and di- 
vorced parents. Seagrave v. Price, 349 
Ark. 433, 79 S.W.3d 339 (2002). 

Grandparent visitation statute was un- 
constitutionally applied in a case where 
the trial court made no reference in its 
findings as to the mother's fitness as cus- 
todial parent, and failed to give her the 



presumption to which she was entitled 
regarding her opinions with respect to 
rearing her child. Seagrave v. Price, 349 
Ark. 433, 79 S.W.3d 339 (2002). 

In a father's action to terminate the 
maternal grandmother's visitation with 
his children, where he had failed to appeal 
a prior ruling that the Arkansas Grand- 
parent Visitation Act was constitutional, 
res judicata precluded him from relitigat- 
ing this issue because the same parties 
and issue had been involved in the prior 
action. Hunt v. Perry, 355 Ark. 303, 138 
S.W.3d 656 (2003), cert, denied, 541 U.S. 
1074, 124 S. Ct. 2428, 158 L. Ed. 2d 984 
(2004). 

Where the mother neither presented 
the trial court with the issue of the consti- 
tutionality of the Arkansas Great-Grand- 
parents Visitation Act, Acts 2003, No. 652, 
nor did she obtain a ruling on the issue, 
the Arkansas Supreme Court declined to 
review the constitutionality of the grand- 
parents visitation law. Gwin v. Daniels, 
357 Ark. 623, 184 S.W3d 28 (2004). 

In General. 

Under the language of subsections (a) 
and (c) of this section, grandparents are 
afforded the separate right to file for visi- 
tation rights with their grandchildren in 
situations where the child's parents are 
divorced, legally separated, or when a 
parent has died. This section contains no 
restrictive language that would require 
grandparents to file their visitation action 
in a divorce action filed previously by the 
child's parents. In fact, § 9-12-320, the 
venue statute concerning subsequent pro- 
ceedings in divorce actions, would be 
wholly inapplicable where the grandpar- 
ents' action is precipitated because their 
son or daughter died and the surviving, 
but not divorced, parent denied them ac- 
cess to their grandchild. Sanders v. Sand- 
ers, 297 Ark. 621, 764 S.W.2d 443 (1989). 

A grandparent has standing to seek 
visitation where the marital relationship 
of the parents of the child has been sev- 
ered without regard to which parent has 
custody of the child; the statute does not 



303 



CHILD CUSTODY AND VISITATION 



9-13-103 



exclude the parents of the parent with 
custody from standing to seek visitation. 
Boothe v. Boothe, 341 Ark. 381, 17 S.W.3d 
464 (2000). 

In a father's action to terminate the 
maternal grandmother's visitation with 
his children, where the trial court ruled 
that it was not possible to determine 
whether the children's behavioral prob- 
lems stemmed from their visitation with 
the grandmother or the blending of the 
families of the father and his current wife, 
and this finding was supported by the 
evidence, it was not disturbed on appeal. 
Hunt v. Perry, 355 Ark. 303, 138 S.W.3d 
656 (2003), cert, denied, 541 U.S. 1074, 
124 S. Ct. 2428, 158 L. Ed. 2d 984 (2004). 

Where a person stands in loco parentis 
to a child, rather than a person or persons 
who simply have a relationship with the 
child, the finding of an in loco parentis 
relationship is different from the grand- 
parent relationships found in prior Arkan- 
sas precedent because it concerns a person 
who in all practical respects is a parent; 
further, the status of in loco parentis per- 
mits, where circumstances warrant, that 
a stepparent be granted visitation with a 
stepchild after a divorce. Robinson v. 
Ford-Robinson, 88 Ark. App. 151, 196 
S.W.3d 503 (2004). 

Order granting grandparents visitation 
with their grandchild was upheld where 
the trial court's findings made pursuant to 
subdivision (b)(1) of this section were sup- 
ported by the evidence; the trial court 
accepted the grandparents at their word 
when they testified that they would coop- 
erate with the mother if visitation was 
allowed. The grandparents shared a close 
and bonded relationship with the grand- 
child. Peterson v. Dean, 102 Ark. App. 215, 
283 S.W.3d 610 (2008). 

Applicability. 

This section does not vest grandparents 
with an absolute right to visitation or 
intervention, but merely a means of peti- 
tioning for visitation. Suster v. Arkansas 
Dep't of Human Servs., 314 Ark. 92, 858 
S.W.2d 122 (1993). 

This section did not enable a grandpar- 
ent to maintain an action for visitation 
rights to a grandchild when the unwed 
custodial parent was the grandparent's 
child. Reed v. Glover, 319 Ark. 16, 889 
S.W.2d 729 (1994). 

The plain language of this section limits 
its operation to cases in which a marital 



relationship between the parents of the 
child has been severed or if the child is in 
the custody or under the guardianship of a 
person other than one or both of his natu- 
ral or adoptive parents. Reed v. Glover, 
319 Ark. 16, 889 S.W.2d 729 (1994). 

A child was legitimated for purposes of 
the statute when his parents married af- 
ter his birth and his father executed an 
acknowledgment of paternity and, there- 
fore, the child's grandparents were not 
eligible to petition for visitation. Ellis v. 
Bennett, 69 Ark. App. 227, 10 S.W.3d 922 
(2000). 

Father alleged that he refused to com- 
ply with the trial court's visitation order 
because his son was being sexually abused 
by the grandmother, but the trial court 
found that the allegations of sexual abuse 
were unsubstantiated; thus, the trial 
court did not err in denying the father's 
petition to terminate the grandmother's 
visitation with the grandchildren pursu- 
ant to the Arkansas Grandparent Visita- 
tion Act and in finding him in contempt of 
the visitation order for refusing to allow 
the grandmother her court ordered visita- 
tion. Hunt v. Perry, 357 Ark. 224, 162 
S.W.3d 891 (2004). 

Modification of custody order was re- 
versed because the trial court erred in 
finding that a mother-in-law had a third- 
party interest in the divorce decree; the 
grandmother had no visitation rights un- 
less they were allowed under this section. 
Hurtt v. Hurtt, 93 Ark. App. 37, 216 
S.W.3d 604 (2005). 

Adoption. 

This section addresses itself to courts 
having jurisdiction in custody proceedings 
and is clearly inapplicable by its own 
terms to adoption proceedings. Poe v. 
Case, 263 Ark. 488, 565 S.W.2d 612 (1978) 
(decision under prior law). 

Grandparents who have been granted 
visitation have a sufficient interest in 
adoption proceedings to entitle them to 
intervene for the limited purpose of offer- 
ing such evidence as may be relevant to 
the focal issue such as whether the pro- 
posed adoption is in the best interest of 
the children. Quarles v. French, 272 Ark. 
51, 611 S.W.2d 757 (1981) (decision under 
prior law). 

Grandparents who have court ordered 
visitation rights are constitutionally en- 
titled to receive notice of an adoption 



9-13-104 



FAMILY LAW 



304 



proceeding. Otherwise, their right to in- 
tervene in the adoption action is meaning- 
less. Brown v. Meekins, 278 Ark. 67, 643 
S.W.2d 553 (1982) (decision under prior 
law). 

A grandmother's visitation and custody 
rights were derivative of her daughter's 
parental rights, and, as a result, were 
terminated when her daughter's parental 
rights were terminated. Suster v. Arkan- 
sas Dep't of Human Servs., 314 Ark. 92, 
858 S.W.2d 122 (1993). 

Great-Aunts. 

There is no common law right to grand- 
parent visitation, and it must logically 
follow that a great-aunt has no such right. 
Hendershot v. Hendershot, 30 Ark. App. 
184, 785 S.W.2d 34 (1990). 

A great-aunt seeking court-ordered visi- 
tation with her grand-nephew and who 
had helped raise the father of her grand- 
nephew did not qualify as a grandparent 
under the provisions of this section. Hend- 
ershot v. Hendershot, 30 Ark. App. 184, 
785 S.W.2d 34 (1990). 

Illustrative Cases. 

Where the testimony of two of the chil- 
dren's teachers, two neighbors, and other 
witnesses clearly demonstrated the 
grandmother's ability to provide love, af- 
fection, and guidance to the children, the 
grandmother was entitled to visitation 
pursuant to this section. Grant v. Richard- 
son, — Ark. App. — , — S.W3d — , 2009 
Ark. App. LEXIS 219 (Mar. 18, 2009). 

Jurisdiction. 

Subdivision (a)(1) of this section does 
not purport to exclude grandparent visita- 
tion after a paternity finding, and § 9-10- 
109(a) specifically provides for visitation 
grants after paternity is found; conse- 
quently, where a petition was filed by the 
grandfather requesting visitation, the 
chancery court operated well within its 



authority in granting visitation rights to 
the grandfather as well as the father. 
Rudolph v. Floyd, 309 Ark. 514, 832 
S.W2d 219 (1992). 

Presumption Not Rebutted. 

Visitation with a maternal grand- 
mother was improperly awarded because 
she failed to rebut the presumption under 
subsections (c)-(e) of this section; although 
she had a significant and viable relation- 
ship with a child for 12 consecutive 
months when he was under four years old, 
visitation was not in the child's best inter- 
est where there was no contact for many 
years, and the child did not wish to see the 
grandmother. The evidence did not show 
that the child would have been harmed by 
the father's decision to allow periodic con- 
tact at his discretion. Brandt v. Willhite, 
98 Ark. App. 350, 255 S.W.3d 491 (2007). 

Circuit court abused its discretion by 
granting the grandparents visitation with 
their granddaughter because the grand- 
parents failed to establish that court-or- 
dered visitation was in the granddaugh- 
ter's best interest and failed to rebut the 
statutory presumption of this section that 
the father's decision was in the grand- 
daughter's best interest, as they did not 
prove that a loss of the relationship be- 
tween them and the granddaughter would 
likely harm her. There was no evidence 
presented at trial that the relationship 
between the grandparents and their 
granddaughter had been lost or would be 
lost, as the grandmother testified that she 
had seen her granddaughter seven times 
from November 17, 2006 and January 29, 
2007 and that the father was very willing 
to work with the grandparents and let 
them see their granddaughter as much as 
they wanted. Oldham v. Morgan, 372 Ark. 
159, 271 S.W.3d 507 (2008). 

Cited: Vice v. Andrews, 328 Ark. 573, 
945 S.W.2d 914 (1997). 



9-13-104. Transfer of custody on school property. 

(a) In order to avoid continuing child custody controversies from 
involving public school personnel and to avoid disruptions to the 
educational atmosphere in our public schools, the transfer of a child 
between the child's custodial parent and noncustodial parent, when 
both parents are present, is prohibited from taking place on the real 
property of a public elementary or secondary school on normal school 
days during normal hours of school operations. 



305 CHILD CUSTODY AND VISITATION 9-13-106 

(b) The provisions of this section shall not prohibit one (1) parent, 
custodial or noncustodial, from transporting the child to school and the 
other parent, custodial or noncustodial, from picking up the child from 
school at prearranged times on prearranged days if prior approval has 
been made with the school's principal. 

History. Acts 1993, No. 660, § 1. 

9-13-105. Criminal records check. 

Any parent of a minor child in a circuit court case may petition the 
court to order a criminal records check of the other parent of a minor 
child. If the court determines there is reasonable cause to suspect that 
the other parent may have engaged in criminal conduct that would be 
relevant to the issue of custody of the minor child or visitation 
privileges, the court may order the sheriff of the county in which the 
petition was filed to conduct a criminal records check through the 
Arkansas Crime Information Center. The court shall review the results 
of the criminal records check, and if it deems appropriate, provide the 
results to the petitioning parent. Any costs associated with conducting 
a criminal records check shall be borne by the petitioning party. 

History. Acts 1997, No. 730, § 1. 

9-13-106. Attorney ad litem programs. 

(a) The Director of the Administrative Office of the Courts is autho- 
rized to establish attorney ad litem programs to represent children in 
guardianship cases in circuit court when custody is an issue. 

(b) When a circuit judge determines that the appointment of an 
attorney ad litem would facilitate a case in which custody is an issue 
and further protect the rights of the child, the circuit judge may appoint 
a private attorney to represent the child. 

(c)(1) The Supreme Court, with advice of the circuit judges, shall 
adopt standards of practice and qualifications for service for attorneys 
who seek to be appointed to provide legal representation for children in 
guardianship cases. 

(2)(A) In extraordinary cases, the circuit court may appoint an 

attorney ad litem who does not meet the required standards and 

qualifications. 

(B) The attorney may not be appointed in subsequent cases until 

he or she has made efforts to meet the standards and qualifications. 

(d) When attorneys are appointed pursuant to subsection (b) of this 
section, the fees for services and reimburseable expenses shall be paid 
from funds appropriated for that purpose to the Administrative Office of 
the Courts. 

(e)(1) When a judge orders the payment of funds for the fees and 
expenses authorized by this section, the judge shall transmit a copy of 
the order to the office, which is authorized to pay the funds. 



9-13-107 FAMILY LAW 306 

(2) The court may also require the parties to pay all or a portion of 
the expenses, depending on the ability of the parties to pay. 

(f) The office shall establish guidelines to provide a maximum 
amount of expenses and fees per hour and per case that will be paid 
pursuant to this section. 

(g) In order to ensure that each judicial district will have an 
appropriate amount of funds to utilize for ad litem representation in 
custody cases, the funds appropriated shall be apportioned based upon 
a formula developed by the office and approved by the Arkansas 
Judicial Council and the Administrative Rules and Regulations Com- 
mittee of the Arkansas Legislative Council. 

(h)(1) The office shall develop a statistical survey that each attorney 
who serves as an ad litem shall complete upon the conclusion of the 
case. 

(2) Statistics shall include: 

(A) The ages of children served; 

(B) Whether the custody issue arises at a divorce or post-divorce 
stage; 

(C) Whether psychological services were ordered; and 

(D) Any other relevant information. 

History. Acts 1999, No. 708, § 3. 

9-13-107. Visitation rights of grandparents when the parent 
does not have custody of the child. 

(a) For purposes of this section: 

(1) "Child" means a minor under eighteen (18) years of age who is: 

(A) The grandchild of the petitioner; or 

(B) The great-grandchild of the petitioner; and 

(2) "Petitioner" means any individual who may petition for visitation 
rights under this section. 

(b) A grandparent or great-grandparent may petition the circuit 
court that granted the guardianship or custody of a child for reasonable 
visitation rights with respect to his or her grandchild or grandchildren 
or great-grandchild or great-grandchildren under this section if the 
child is in the custody or under the guardianship of a person other than 
one (1) or both of his or her natural or adoptive parents. 

(c) Visitation with the child may be granted only if the court 
determines that visitation with the petitioner is in the best interest and 
welfare of the child. 

(d)(1) An order granting or denying visitation rights to grandparents 
and great-grandparents under this section shall be in writing and shall 
state any and all factors considered by the court in its decision to grant 
or deny visitation. 

(2)(A) If the court grants visitation to the petitioner under this 
section, then the visitation shall be exercised in a manner consistent 
with all orders regarding custody of or visitation with the child unless 
the court makes a specific finding otherwise. 



307 CHILD CUSTODY AND VISITATION 9-13-109 

(B) If the court finds that the petitioner's visitation should be 
restricted or limited in any way, then the court shall include the 
restrictions or limitations in the order granting visitation. 

(3) An order granting or denying visitation rights under this section 
is a final order for purposes of appeal. 

(4) After an order granting or denying visitation has been entered 
under this section, a party may petition the court for the following: 

(A) Contempt proceedings if one (1) party to the order fails to 
comply with the order; 

(B) To address the issue of visitation based on a change in 
circumstances; or 

(C) To address the need to add or modify restrictions or limitations 
to visitation previously awarded under this section. 

History. Acts 2003, No. 652, § 2. 

RESEARCH REFERENCES 

U. Ark. Little Rock L. Rev. Survey of tation Rights, 26 U. Ark. Little Rock L. 
Legislation, 2003 Arkansas General As- Rev. 411. 
sembly, Family Law, Grandparents' Visi- 

CASE NOTES 

Visitation. its discretion by determining that visita- 

Where evidence showed that the pater- tion with the paternal grandparents at 

nal grandparents allowed minor child to the present time was not in the best 

move in with his father in violation of a interest of the child. Bier v. Mills, 95 Ark. 

custody order, the trial court did not abuse App. 336, 237 S.W.3d 111 (2006). 

9-13-108. Visitation — Preference of child. 

In an action under this subchapter concerning a person's right to 
visitation with a minor child, the circuit court may consider the 
preferences of the child if the child is of a sufficient age and capacity to 
reason, regardless of chronological age. 

History. Acts 2005, No. 80, § 2. 

RESEARCH REFERENCES 

U. Ark. Little Rock L. Rev. Survey of sembly, Family Law, 28 U. Ark. Little 
Legislation, 2005 Arkansas General As- Rock L. Rev. 357. 

9-13-109. Drug testing — Proceedings concerning child custody, 
visitation, or the welfare of a child. 

(a) For purposes of this section, "drug" means any controlled sub- 
stance as denned by the Uniform Controlled Substances Act, § 5-64- 
101 et seq. 



9-13-110 FAMILY LAW 308 

(b) In a proceeding concerning child custody, child visitation, or the 
welfare of a child, the court may order drug testing of a party upon 
application of a party or by its own motion. 

(c) The court may assess the cost of the drug testing to a party or 
parties or otherwise order or arrange payment of the cost of drug 
testing. 

History. Acts 2005, No. 430, § 1. 

9-13-110. Parents who are members of the armed forces. 

(a) As used in this section: 

(1) "Armed forces" means the National Guard and the reserve 
components of the armed forces, the United States Army, the United 
States Navy, the United States Marine Corps, the United States Coast 
Guard, and the United States Air Force, and any other branch of the 
military and naval forces or auxiliaries of the United States or Arkan- 
sas; and 

(2) "Mobilized parent" means a parent who: 

(A) Is a member of the armed forces; and 

(B) Is called to active duty or receives orders for duty that is 
outside the state or country. 

(b) A court shall not permanently modify an order for child custody or 
visitation solely on the basis that one (1) of the parents is a mobilized 
parent. 

(c)(1) A court of competent jurisdiction shall determine whether a 
temporary modification to an order for child custody or visitation is 
appropriate for a child or children of a mobilized parent. 

(2) The determination under this subsection (c) includes consider- 
ation of any and all circumstances that are necessary to maximize the 
mobilized parent's time and contact with his or her child that is 
consistent with the best interest of the child, including without limita- 
tion: 

(A) The ordered length of the mobilized parent's call to active duty; 

(B) The mobilized parent's duty station or stations; 

(C) The opportunity that the mobilized parent will have for contact 
with the child through a leave, a pass, or other authorized absence 
from duty; 

(D) The contact that the mobilized parent has had with the child 
before the call to active military duty; 

(E) The nature of the military mission, if known; and 

(F) Any other factor that the court deems appropriate under the 
circumstances. 

(d) This section shall not limit the power of a court of competent 
jurisdiction to permanently modify an order of child custody or visita- 
tion in the event that a parent volunteers for permanent military duty 
as a career choice regardless of whether t